Central Administrative Tribunal - Delhi
Sh. Swapan Kumar Das vs Union Of India Through on 20 October, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1653/2010
New Delhi this the 20th day of October, 2011.
Honble Mrs. Meera Chhibber, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. Swapan Kumar Das,
S/o late Sh. Ajit Kumar Das,
Director General,
Central Statistical Organization,
Ministry of Statistics and Programme
Implementation, Sardar Patel Bhawan,
Parliament Street, New Delhi-1. . Applicant
(through Sh. S.K. Das, Advocate)
Versus
1. Union of India through
The Chief Statistician of India and
Secretary, Ministry of Statistics and
Programme Implementation, Sardar
Patel Bhawan, Sansad Marg,
New Delhi-1.
2. The Search Committee for the Selection
of the Chief Statistician of India,
through the Deputy Director General,
National Statistical Commission,
Ministry of Statistics and Programme Implementation,
2nd Floor, Sardar Patel Bhawan,
Sansad Marg, New Delhi-1.
3. Prof. T.C.A. Anant,
through the Deputy Director General,
National Statistical Commission,
Ministry of Statistics and Programme
Implementation, 2nd Floor, Sardar Patel Bhawan,
Sansad Marg, New Delhi-1.
4. Sh. Ramesh Holli,
through the Deputy Director General,
National Statistical Commission,
Ministry of Statistics and Programme Implementation,
2nd Floor, Sardar Patel Bhawan, Sansad Marg,
New Delhi-1. . Respondents
(through Sh. Krishna Kumar, Advocate and Sh. T.R. Mohanty, Intervener respondent in person)
O R D E R
Dr. A.K. Mishra, Member (A) The present application has been filed challenging the short- listing of the names of respondents No. 3 and 4 made by the Search Committee (respondent No.2), which was constituted by the Union of India (respondent No.1) for recommending names of candidates for appointment to the post of Chief Statistician of India (to be referred as CSI). The applicant has sought the following reliefs:-
(i) to allow the present application;
(ii) to quash and set aside the proceedings of the Search Committee (Respondent No.2) and their recommendations for selection and appointment to the post of Chief Statistician of India;
(iii) to direct Respondent No.1 to reconstitute the Search Committee and consider the cases of only those Applicants, including the present Applicant, for the post of Chief Statistician of India who are eligible in terms of the Notification (Annexure :A-2) and the advertisement (Annexure : A-1) insofar as it requires statistical and managerial experience in large statistical organization;
(iv) to direct the Official Respondents to declare in advance the criteria for short listing candidates and also the criteria for selection of candidates before initiation of the process of reconsideration consequent to the setting aside of the present select list/panel.
2. Brief facts of the case giving rise to the present application are given below:-
2.1 With a view to re-organizing the Ministry of Statistics and Programme Implementation (MOSPI), Government of India set up a Commission under the Chairmanship of Dr. C. Rangarajan, Ex-Governor, Reserve Bank of India, which recommended establishing a National Statistical Commission and appointment of a Professional to the post of Chief Statistician of India. Accordingly, the National Statistical Commission was set up vide Resolution dated 01.06.2005 and the post of CSI was created by converting the post of Director General of Central Statistical Organization (DGCSO) and taking it out of the cadre of Indian Statistical Service (ISS) Cadre. It was given the status of Secretary to Government of India and a tenure of 5 years; the age of superannuation was fixed at the age of 62 years. The post of DGCSO was reconstituted in the pay-scale applicable to the post of Additional Secretary, Government of India. The paragraph-4 of the Notification dated 08.05.2006 in respect of appointment and tenure of CSI reads as follows:-
4. Appointment, Tenure and Service Conditions of the Chief Statistician of India.
4.1 The Chief Statistician of India will be the Secretary of the Commission. He will also be the head of the National Statistical Organisation and discharge the functions of the Secretary to the Government of India in the Department of Statistics.
4.2 The Search Committee shall recommend names of two persons for the post of the Chief Statistician of India, out of which the Government of India shall appoint one person as the Chief Statistician of India. Persons with statistical and managerial experience in a large statistical organisation shall be considered for appointment.
4.3 The tenure of the Chief Statistician of India will be five years or till he/she attains the age of sixty two years, whichever is earlier. The Chief Statistician of India will be eligible for reappointment. He/she should have attained the age of 52 years at the time of appointment.
4.4 The Chief Statistician of India will be eligible for the salary and allowances of a Secretary to the Government of India. He will also be eligible for Government accommodation, telephone, medical attendance and all other facilities as admissible to a Secretary to the Government of India.
4.5 xxxxx. 2.2 Initially Dr. Pronab Sen of Planning Commission was appointed as the CSI on 20.02.2007 for a period of 3 years which was subsequently extended for 3 more months by order dated 20.02.2010 of respondent No.1. The original intention of respondent No.1 was to give extension to Dr. Sen for a further period of 2 years which was not possible because of disinclination on the part of Dr. Sen. Therefore, the process for selection of a suitable candidate was activated and the Search Committee consisting of (i) Deputy Chairman of the Planning Commission-Chairperson;(ii) Deputy Governor of the Reserve Bank of India-member and (iii) Two eminent persons-distinguished Statisticians or Social Scientists with intimate knowledge of the Statistical System of the country, began to initiate action for inviting applications as well as contacting eminent persons in the field for their names to be considered for the post. It may be mentioned that Dr. Subir Gokarn, one of the Deputy Governors of the Reserve Bank of India, was nominated as the Member, Prof. K.L. Krishna, Retd. Professor, Delhi School of Economics, University of Delhi and Prof. S.P. Mukerjee, Chairman, Calcutta Statistical Association were included as the other two Members of the Committee. An advertisement was issued in National Dailies as well as posted in the official website of MOSPI. On the basis of advertisement, 12 applications were received and 12 more candidates were contacted on the suggestions of the Members of the Committee; one candidate was common to both the groups. As such there were 23 candidates, out of which 4 expressed their unwillingness, which left 19 candidates for consideration of the Committee. The Search Committee met 5 times and discussed the subject sometimes through video- conferencing and finally on the 8th of May 2010 recommended the names of respondents No. 3 and 4 for consideration of respondent No.1. Out of 19 candidates the Search Committee had invited 7 candidates including the applicant as well as Sh. Seddey in whose favour this Tribunal had earlier given a direction on 23.04.2010 in OA-1326/2010 for interaction with Committee Members.
2.3 On the basis of the recommendations of the Search Committee, respondent No.1 finally appointed respondent No.3 to the post of CSI. This O.A. was made prior to such appointment. But while issuing notice it was directed that any appointment to be made in this regard would be subject to the outcome of this case. Therefore, the appointment order of respondent No.3 has not been specifically challenged in the OA. But subsequently the applicant in his rejoinder affidavit has made the following prayer:-
In the facts and circumstances of the matter, in view of the submissions made in the OA and herein above, and also because of the lack of any viable defence of the Respondent, this Applicant prays that this Honble Tribunal may be graciously pleased to writ of quo warranto may be issued, the appointment of Respondent No. 3 to the post of Chief Statistician of India may be quashed and set aside and the post of Chief Statistician of India may be declared as vacant with exemplary costs. 2.4 Sh. Tushar Ranjan Mohanty, one of the candidates for the post, filed Miscellaneous Application (MA) No.739/2011 with a prayer that the pleas taken by him in the MA should be considered at the time of final determination of the O.A. and further that he should be allowed to present oral arguments as an intervener in support of the case made out in the O.A. The candidature of Sh. Mohanty was not considered by the Search Committee on the ground that he was short of the prescribed minimum age-limit of 52 years. As such, he had no specific right to be enforced in the present O.A. except that he was challenging the appointment of respondent No.3 as illegal and unjustified on the basis of the criteria fixed both in the advertisement notice as well as in the relevant notification of the Government. He has mostly reiterated the arguments which have been advanced by the applicant in the present O.A. and canvassed a few additional ones. The M.A. is disposed of with the observation that he was permitted to canvass his oral arguments at the time of final hearing and his contentions have been taken note of in the present O.A. 2.5 Both respondents No. 3 and 4 have not filed any separate counter reply in spite of service of notice on them. Therefore, we proceeded to hear the case on the basis of the affidavits of the applicant, the intervener and those made on behalf of all the respondents as well as the oral submissions made by the learned counsel for the applicant, the intervener in person and the learned counsel for the respondents.
3. At the time of hearing, learned counsel for the applicant raised the following issues:-
3.1 The advertisement dated 12.02.2010 (Annexure A-1) prescribed the following:-
Qualifications: The applicants shall e Indian Nationals with proven statistical and managerial experience in a large statistical organization. He or she should have attained the age of 52 years and should be below the age of 62 years at the time of appointment.
xxxxx Selection procedure: A Search Committee appointed by the Government of India will recommend a panel of names from among the applicants. Besides the applicants, the Committee may also recommend names of other persons whom it finds suitable in the panel. In the process, the Committee may interview a few applicants. The CSI will be selected from the panel of names recommended by the Search Committee. It is the contention of the applicant that respondent No. 3 who has been finally appointed and earlier was recommended by the Search Committee did not satisfy the prescribed qualification as he did not have proven Statistical and Managerial Experience in a large Statistical Organization. He is an economist who worked as Asstt. Professor, Economics in Michigan State University during 1984-1987, Asstt. Professor in Economics in Delhi University from 1987-1998 and Prof. of Economics in Delhi University from 1998 onwards. During a short period 2006-2009 he worked as Member-Secretary of Indian Council of Social Science Research (ICSSR) which is a small organization with 200 employees out of which about 118 belong to Group-C and Group-D categories (vide documents filed at pages 38 to 40). Mr. Mohanty, the intervener, states that the post of Member-Secretary, ICSSR is equivalent to the rank of Director in a Ministry of Government of India and its pay scale is Rs.37400-67000 as seen from the advertisement dated01.05.2011, a copy of which is annexed at page-2023). It is neither a large organization nor a Statistical one. Its main job is to co-ordinate research on Social Science subjects. He referred to the website of ICSSR which gives a list of works undertaken by that organization. They do not indicate that it is, in any way, a large Statistical Organization. Learned counsel for the applicant also adopted this argument and suggested that a three year tenure as Member-Secretary of this organization would not give the respondent No.3 the required Statistical and Managerial experience of a large Statistical Organization prescribed for the post of CSI. Therefore, he contends that the respondent No.3 did not satisfy the prescribed eligibility criteria and his appointment was in clear violation of the conditions mentioned in the Notification dated 08.05.2006 of Government of India as well as in the advertisement dated 12.02.2010.
3.2 Learned counsel placed reliance on the following judgments:-
(i) Badrinath Vs. Govt. of Tamilnadu, AIR 2000 SC 3243,
(ii) R.S. Garg Vs. State of U.P. and Ors., AIR 2006 SC 2912,
(iii) SURAJ PARKASH GUPTA AND OTHERS ETC. Vs. STATE OF J. AND K AND OTHERS, AIR 2000 SC 2386 and
(iv) Pramod Kumar Vs. UP Secondary Education Services Commission, AIR 2008 SC 1817.
to contend that wherever qualifications for holding a post have been laid down under a Statute, any appointment made in violation thereof would be treated as a nullity. Further, if any essential qualification for recruitment to a post is specified, its non-compliance cannot be condoned, nor can such an act be ratified. He also cites the judgment of the Apex Court in the case of District Collector Vs. M. Tripura Sundari Devi, 1990(3)SCC 655 which says that when the advertisement mentions a particular qualification and an appointment is made in disregard thereof, it is not a matter only between the appointing authority and the appointee concerned but the aggrieved are those who had similar or even better qualification than the appointee. He relies on the decision of the Apex Court in the case B.S. Chaturvedi Vs. U.O.I., AIR 1996 SC 484 (paragraph-18) to contend that where there is no appeal from a decision but a review is made of the manner in which the decision is made, the power of judicial review is to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of law.
3.3 Mr. Mohanty has given a large number of citations in support of the contention that there cannot be any valid appointment in favour of a person who does not satisfy essential eligibility criteria.
3.4 According to the applicant, there were only 5 candidates, including himself, who satisfied the prescribed eligibility criteria of Statistical and Managerial experience in a large Statistical Organization. But the Search Committee initially short-listed 5 names out of which 2 including the respondent No. 4, who were juniors to him, had the requisite professional experience and the other 3 (including respondent No.3) were academicians. Subsequently, through intervention of this Tribunal, Sh. Seddey was provisionally included for interview and some time before the interview, the applicant was also invited. The reasons why the applicant and Sh. Sheddey who were the senior-most officers of the ISS Cadre were originally excluded from the short-list are not forth-coming. It goes to say that the action of the Search Committee was not based on any rational considerations, but was on account of whims and fancies and positive bias in favour of respondent No.3. No rational principles informing deliberations and decisions of the Search Committee are discernible any where in the official record.
3.5 It is alleged that Prof. R. Radhakrishnan, Chairman of National Statistical Commission was not only present at the interview Board but took active part in the selection process. He was neither a Member of the Search Committee nor was specially empowered for the purpose in the Government Notification. He attended the meetings of the Committee as a special invitee. It is contended that his involvement was unauthorized and would vitiate the selection process.
3.6 It is alleged that Dr. Subir Gokarn, a Member of the Search Committee in his capacity as Dy. Governor of Reserve Bank of India, was not present on 26.04.2010 when the interview took place but his participation in video conferencing mode was ensured on 08.05.2010 when the final meeting took place. It shows that he vehemently supported the candidature of Prof. T.C.A. Anant (Respondent No.3) and Sh. Ramesh Kolli (Respondent No.4) who were ultimately empanelled. It is further alleged that Dr. Gokarn and Prof. Anant (Respondents No.3) are both from Delhi School of Economics and Dr. Gokarn was one year junior to Prof. Anant at Delhi School. Besides, both of them had done their Ph.D. in Economics from United States of America. Prof. K.L. Krishna, another Member of the Committee, was the co-author with Prof. Anant in a published paper. This indicates that there was close nexus between the final selectee and two Members of the Search Committee. Fairness demanded that Prof. Krishna who co-authored a published paper with respondent No.3, a candidate before the Committee, should have recused himself and not participated in the selection process.
3.7 Learned counsel submits that no authority can be given uncontrolled power without proper guidelines. Exercise of such power in the absence of transparent guidelines and in violation of the conditions set forth for the purpose of selection must be declared as unconstitutional. He contends that the Search Committee should have declared the criteria and methodology of selection before embarking on the process of interview. He relies on the observations of the Apex court in the case A.S. Ahluwalia Vs. Punjab, 1975(3) SCR 82 and subsequently in Sukhdev Vs. Bhagatram, 1975(3) SCR 619 where it was said that the executive agency must be rigorously held to the standards by which it professed its action to be judged. It emphasized that not only the principle of equality before law as enshrined in Article 14 of the Constitution but also the salient principle of administrative law about well defined procedure which is just and proper should inform all administrative actions has to be followed.
3.8 Mr. Mohanty, the intervener, has raised the following additional grounds in support of the OA:-
(i) There was no necessity of short listing the limited number of candidates who were available for interview and such short listing was arbitrary as no notice about it was given in the advertisement.
(ii) The Search Committee has not given any reason why respondent No.3 was asked to apply for the post. This assumes significance in the context of bias and nexus which has been alleged between some Members of the Search Committee with respondent No.3. There is no recorded reason why of all the distinguished economists of this country, respondent No.3 was specifically asked to apply for the post, nor is there any reason why other distinguished Statisticians have been ignored by the Committee.
(iii) Respondent No.1 has not given any reason why respondent No.3 was selected in preference to respondent No. 4 who besides being an eminent Statistician was also recommended by the Search Committee.
(iv) Article 320(3)(a)(b) of the Constitution requires that UPSC should be consulted while deciding the methods of recruitment and the principles to be followed in making appointment to civil post under the Union. The post of CSI has not been exempted from consultation under provisions of Regulation, 1958 of UPSC. Since this post is continuing for more than one year and has a permanency about it, it is obligatory on the part of respondent No.1 to frame statutory rules for recruitment in respect of this post and follow the instructions of Department of Personnel & Training (DoP&T) contained in O.M. dated 30.07.2007 in the matter of filling up of such posts through recommendation of a Search Committee.
(v) When the post fell vacant on 20.02.2010 after completion of the tenure of Dr. Pronab Sen, steps should have been taken six months in advance to fill up the post but the advertisement was issued deliberately on 12.02.2010 with a view to favouring respondent No.3 who did not have the minimum age requirement of 52 years till January 2010.
(vi) He further contends that Respondent No.3 should be treated as a usurper and his appointment is disregard of the eligibility criteria is a nullity in the eyes of law. In that context, the Tribunal is entitled to judicially review the whole process, and issue appropriate direction to respondent No.1 setting aside the appointment of respondent No.3 and for re-initiation of the process.
4. Respondents on the other hand have submitted that the brief of the Search Committee was to take such steps as would result in a wider choice. It was not mandatory on their part to limit the number of candidates to those who responded to the advertisement. Although the Ministry had advertised in National Dailies and official website and 12 candidates had responded, additionally applications were invited through suggestions of Members of the Search Committee from12 persons out of which one had already applied and 4 declined to be considered. It was not necessary that all the candidates should have been invited for interview. The Committee examined their curriculum vitae, professional background, level of knowledge in official Statistics, their contribution to the statistical system and exposure to International Statistical scenario as well as their relative professional merit and all such relevant materials besides personal talk for which 7 candidates were invited. The applicant was invited for the interview prior to issue of direction of this Tribunal in respect of Sh. Seddey in OA-1326/2010 and his invitation had nothing to do with the direction of the Tribunal. Even the instances of minor penalties imposed on the applicant were ignored by the Search Committee on the ground that those were very old and not relevant for the purpose of selection.
4.1 It is submitted that the expression person with Statistical and Managerial experience in a large Statistical Organization shall be considered should not be treated in a restrictive manner as only to be considered for appointment as is being argued by the applicant. If this interpretation is accepted, it would mean that the selection would be limited to the officers of large official Statistical Organizations such as CSO and NSSO. That would defeat the very objective of creating the post of CSI to be filled up on a wider basis. The recommendations of Rangarajan Commission were, in fact, to set apart this post from the cadre of ISS, to be filled up by a process of special selection and not by promotion from the ISS.
4.2 It is further contended that seniority of officers in the ISS cadre is not the criteria on the basis of which candidates are short-listed by the Search Committee. On the other hand, outstanding Members of the ISS, though junior in the cadre, could be considered as the post was to be filled up purely on the basis of merit. The Search Committee was required to recommend only 2 names and it did exactly that in the present case, although there were other suitable candidates. It was contended that given a liberal interpretation, there was no violation of the conditions of the Government Notification governing the subject. Besides, the applicant has the right to be considered but he does not have a vested right to be selected. Learned counsel for the respondents places reliance on the judgment of the Apex Court in the case Dr. Basavaiah Vs. Dr. H.L. Ramesh & Ors., 2010(7) Scale 529; paragraphs 27 and 28 of this judgment read as follows:-
27. It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. In the instant case, experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointments were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the countrys leading experts in the field of Sericulture.
28. A similar controversy arose about 45 years ago regarding appointment of Anniah Gowda to the post of Research Reader in English in the Central College, Bangalore, in the case of The University of Mysore and Anr. V. C.D. Govinda Rao and Anr., AIR 1965 SC 491, in which the Constitution Bench unanimously held that normally the Courts should be slow to interfere with the opinions expressed by the experts particularly in a case when there is no allegation of mala fides against the experts who had constituted the Selection Board. The court further observed that it would normally be wise and safe for the courts to leave the decisions of academic matters to the experts who are more familiar with the problems they face than the courts generally can be. 4.3 He also cites the following observations made in paragraph-15 of the Honble Supreme Court in the case Hari Bansh Lal Vs. Sahodar Prasad Mahto & Ors., 2010(8) SCALE 623:-
15. In State Bank of India and Others vs. Mohd. Mynuddin, (1987) 4 SCC 486, after adverting to earlier decision of this Court in The State of Mysore & Anr. vs. Syed Mahmood & Ors., (1968) 3 SCR 363 this Court held:
".....The ratio of the above decision is that where the State Government or a statutory authority is under an obligation to promote an employee to a higher post which has to be filled up by selection the State Government or the statutory authority alone should be directed to consider the question whether the employee is entitled to be so promoted and that the court should not ordinarily issue a writ to the government or the statutory authority to promote an officer straightway. The principle enunciated in the above decision is equally applicable to the case in hand."
It is clear from the above decisions, suitability or otherwise of a candidate for appointment to a post is the function of the appointing authority and not of the court unless the appointment is contrary to statutory provisions/rules. 4.4 It is contended that the appointment to the post of CSI is by nomination not by selection. The Search Committee has to recommend two names to the government and the process is not similar to what is done by a Selection Board or the UPSC. As such the rules and processes which are adopted for selection of candidates are not applicable in the present case. He refers to the Notification dated 01.06.2005 on the subject of constitution of National Statistical Commission of India which at paragraph-4 states as follows:-
The Search Committee shall recommend names of three persons to the Government of India for selection as Chairperson and one of them would be nominated as the Chairperson. The Search Committee shall also recommend names of two persons from each of the categires in 2(b) and 2(d) eligible to be appointed as members and Chief Statistician respectively, and the Government of India shall nominate one member from each of the categories under 2(b) as Members of the Commission and appoint the Chief Statistician. 4.5 It says that government shall nominate one Member each from the categories specified under paragraph-2(b) as Members of the Commission and appoint one as the Chief Statistician out of the two names recommended under 2(d). It has been further amplified in paragraph 4.2 of the Notification dated 08.05.2006 which has already been referred to. Learned counsel submits that there is no difference between the English and Hindi Versions and the apparent difference has been explained in the official website www.mospi.gov.in. The advertisement says that the Committee may interview few applicants. It is not necessary for the Committee to interview all the candidates who apply. The advertisement also says specifically that the Committee could recommend names of other persons, not necessarily the applicants to the post who, in its opinion, are suitable. It is further stated that the extension granted to Dr. Pronab Sen has no linkage with the Prof. Anants candidature. The tenure of Dr. Sen was coming to an end on 2.02.2010. His willingness for extension of his tenure by 2 years was sought for, but was declined. The matter was referred to the Search Committee on 22.12.2009 and the Committee suggested that temporary extension of tenure should be given to Dr. Pronab Sen till the Search Committee recommended a suitable panel. In view of this recommendation, short extension of tenure of Dr. Sen was given and it had nothing to do with the candidature of Prof. Anant. If Dr. Sen had given his consent, he would have continued for 2 more years.
5. It may be stated here that the argument that the appointment of CSI was through a process of nomination, not selection, does not impress us. The Notification proves that Chairperson and other Members of the Commission will be nominated but CSI will be appointed on the basis of recommendations of the Search Committee; he would be appointed to a public post and will function as the Secretary of the Department. There is a vast difference between nomination to the post of Chairperson and Part-time Members of the Commission and appointment to a civil post such as the CSI.
6. It is seen that, pursuant to the recommendations of the Search Committee, respondent No. 3 was appointed to the post of CSI by the Union Government of India and he has since taken over the post. The applicant has mentioned in the rejoinder-affidavit that he has not specifically challenged the appointment of respondent No. 3 in view of the fact that the notice which was issued in this O.A. made it clear that any appointment to be made on the basis of the impugned recommendations would be subject to the outcome of this O.A. Since the process of selection has been called into question in this O.A., it necessarily follows that any consequential action taken on the impugned recommendations would be subject to the findings in this O.A. 6.1 The primary question is whether the selection was made of candidates who satisfied the eligibility criteria set-forth by the Government itself in its Notification dated 08.05.2006 and the subsequent advertisement issued by the Ministry on 12.02.2010 inviting applications for the post of CSI. As far as respondent No.4 is concerned, there is no dispute, but questions have been raised about the eligibility of respondent No.3 who was finally appointed. The objective in setting up National Statistical Commission as well as National Statistical Organization was to have a professional body to coordinate all Statistical duties in public domain performed by government agencies. Paragraphs 3.2 and 3.3 deal with the nature of professional eminence of the Chairman and part-time Members of this Commission. They read as under:-
3.2 The Chairperson has to be an outstanding statistician or social scientist and a person of eminence in an academic discipline involving application of scientific methods and significant use of quantitative techniques to contemporary social, statistical and economic development related subjects.
3.3 There will be four part time members, one each from the following fields having specialization and experience in Economic statistics in such areas as agriculture, industry, infrastructure, trade or finance Social and environment statistics in such areas as population, health, education, labour and employment or environment Statistical operations in such areas as censuses, surveys, statistical information system or information technology National accounts, statistical modeling or state statistical systems. Paragraph-4 of the Notification deals with the appointment, tenure and service conditions of Chief Statistician of India. Not only the CSI will be the Secretary of the Commission, he will also the head of National Statistical Organization which comprises both CSO as well as NSSO and will discharge the functions of the erstwhile Secretary to the Government of India in the Department of Statistics. Formerly a very senior officer belonging to Indian Administrative Service used to be appointed as the Secretary of the Ministry. This system was changed with a view to bringing in greater professional expertise at the highest bureaucratic level of the Statistical Department. Therefore, it was prescribed that the Search Committee shall recommend two names of persons with Statistical and Managerial experience in large Statistical Organization out of which one will be appointed by the Government.
6.2 The Curriculum Vitae of respondent No.3 placed at page-1232 shows that Prof. Anant is a distinguished economist who was working as Prof. of Economics in Delhi University before he was picked up for the job of CSI. He was represented in many Committees dealing with economic/financial issues and also in academic Boards. He has, to his credit, published a number of papers, again, mostly on economic, social, financial, regulatory and institutional reforms issues. Besides, there were papers on subjects like industrial sickness, inter-linkage in backward agriculture, legal institutional framework, employment and labour wage policy, etc. By and large, his curriculum vitae gives a pen-picture on his outstanding contribution in the field of Economics. But the question which has to be answered is whether this satisfies the criteria set by the Government itself for selection of a candidate suitable for appointment on the post of CSI.
6.3 It was strenuously argued by learned counsel for the respondents that Prof. Anant had worked for 3 years as Member-Secretary to the ICSSR and in that capacity had acquired sufficient professional experience in Statistical and Managerial Disciplines as to qualify for the post of CSI. The ICSSR has been established by the Government to promote research in Social Sciences in the country. It sponsors studies in Social Sciences, Research Programmes, provides grants to institutions and individuals, identifies new research areas and gives direction for fields where studies in social science should be promoted. The Council supports 27 Research Institutions and has a net-work of regional centres. But it would be difficult to say that it qualifies as a large statistical organization, or for that matter, as a professional institution primarily dealing with major statistical programmes. Both the counsel for the applicant as well as the intervener have pointed out that out of total work force of 200 this Council has about 118 Group-C and D employees. Out of the balance number, there are 41 belonging to category-B and remaining 41 in category-A. Such figures would not entitle this Council to be called a large Statistical Organization.
6.4 The respondents have submitted that if a strict view of large Statistical Organization is taken, then we would be left with only CSO and NSSO and the objective of throwing open the field for wider choice would be defeated. To this, learned counsel for the applicant submits that there are a number of private and autonomous Statistical Organizations which are not only large in size but primarily deal with Statistical Programmes, but, surely, ICSSR would not be one such.
6.5 It was pointed out by the counsel for applicant and the intervener that the subject Economics is very different from the subject Statistics and for that reason there are two separate cadres of Indian Economic Service and Indian Statistical Service in Govt. of India. The educational qualification for a Member of Indian Economic Service is Post Graduate Degree from a recognized university in Economics/Applied Economics/Business Economics/Econometrics, whereas for Indian Statistical Service, it is Post Grade Degree from an Indian University in Statistics/Applied Statistics/Mathematical Statistics. There is a vast difference between Statistics and Economics. It is true, learned counsel for the applicant submits, that some of the Statistical tools are employed in many disciplines. But, familiarity with statistical tools by professionals of those disciplines would not make them Professional Statisticians working in large Statistical Organizations.
7. We are not concerned with the distinction between Statistics and other Social Sciences including Economics. We are to examine whether the selection of respondent No.1 was in accordance with Notification of the Government on the subject and the advertisement which was issued inviting applications. The Notification dated 08.05.2006 speaks about persons of Statistical and Managerial experience in large Statistical organization. Had the intention of the Government been otherwise, they would have given a different formulation. In the absence of recruitment rules for the post, we are to be guided by the Notification dated 08.05.2006 which has the force of Government Policy Resolution on the subject. Counsel for the applicant as well as the intervener have placed reliance on a number of judgments to contend that appointment of person to a public post in violation of the statutory rules or the prescribed eligibility criteria cannot be condoned in a judicial review. In this connection, the observations of the Apex Court made in paragraph-6 of their order in the case of District Collector (supra) read as under:-
It must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact. In the ratio of the judgments cited by the applicant and the intervener the underlying principle which emerges is that the eligibility criteria prescribed in the recruitment rules must be adhered to and there could not be any relaxation in this regard. This maxim finds expression in the observations of the Apex Court in the case of Suraj Prakash Gupta (supra) in the following manner:-
The decision of this Court have recently been requiring strict conformity with the Recruitment Rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental rules of recruitment. There observations have been extracted approvingly by the Honble Supreme Court in the case R.S. Garg (supra) at paragraph-15 of the judgment.
8. Admittedly, there are no recruitment rules governing appointment to the post of CSI. Nevertheless, the Notification dated 08.05.2006 of the Government lays down the policy of the Government in respect of Appointment, Tenure and Service Conditions of the CSI. The Policy of the Government should be considered fundamental in the matter of appointment to the post. It mentions in clear terms that persons with Statistical and Managerial experience in large Statistical organization shall be considered for appointment. This requirement has been further reiterated in the Advertisement Notice dated 12.02.2010 inviting applications where the qualification for the post has been prescribed.
9. It is of interest to note that the Government Notification while prescribing the eligibility criteria for the post of Chairperson of the National Statistical Commission mentions that he should be an outstanding Statistician or Social Scientist and a person of eminence in an academic discipline involving application of scientific methods and significant use of quantitative techniques to contemporary social, statistical and economic development related subjects. In respect of the other 4 part-time Members, it states in clear terms that the Members must be having specialization in the 4 specified areas of Statistics as mentioned in paragraph 3.3. But for the post of CSI, it mentions categorically that the person should be with Statistical and Managerial experience in large Statistical organization. In other words, the framers of the policy were very clear about the eligibility criteria of each of the incumbents to the posts specified in the Notification. Therefore, there does not seem any scope for relaxation. An eminent Statistician/Social Scientist with significant contribution in academic disciplines as aforesaid could become the Chairperson of the Commission, but in order to be appointed as CSI, he has to be a professional with Statistical and Managerial experience in large Statistical Organization.
9. We wanted to know the logic which informed the deliberations of the Search Committee and their final recommendation and called for the minutes of the meetings of the Search Committee held in this connection. We find that the agenda note for the meeting of 16.03.2010 has set forth the eligibility criteria in paragraph-2 of the note. The record of the proceedings of the meeting mentions at paragraph-3 that the eligibility conditions laid down in Government of India Notification dated 10.05.2006 for the post of CSI were noted by the Committee Members. After examining the Curriculum Vitaes of the 19 candidates who were willing to be considered, the Committee identified 8 candidates for further examination and their names have been indicated at paragraph-6 where the name of the applicant also figures at Serial No. 3. But no reasoning has been given why these 8 were identified for further examination and why others were eliminated. It says at paragraph-5:-
The Search Committee examined the CVs of the remaining 19 candidates and their professional background keeping in view the eligibility conditions prescribed, and short-listed the cases of 8 candidates for further detailed examination. The Search Committee also considered the views of Prof. Radhakrishna, the Chairman of the NSC. Although it mentions that the eligibility conditions prescribed were kept in view but nothing has been stated why the name of the respondent No. 3 who, prima facie, did not satisfy the prescribed criteria was included in the short-list. It discusses the orders of this Tribunal dated 22.04.2010 passed in OA-1306/2010 (Tushar Ranjan Mohanty Vs. UOI & Ors.) and dated 23.04.20201 passed in OA-1326/2010 (Subhash Chand Seddey Vs. UOI & Anr.) and rejects the candidature of Sh. Tushar Ranjan Mohanty on the ground that he was under-aged as per the prescription of minimum age made by the Government on which it is stated that the Search Committee had little control. They also rejected the candidature of Prof. G.C.R. Jaiswal (DOB : 01.04.1959) and Dr. Girish Mehta (DOB: 15.01.1975) on the same ground of being under-aged. Besides, the Search Committee after perusing their CVs did not find them suitable for inclusion in the panel. It also mentions that Sh. S.C. Seddey was provisionally interviewed on 26.04.2010 as per the direction of this Tribunal. It goes on to say that the Committee shall not be influenced by the petitions/representations received but that it should go only by the professional merit of the candidates. It was also felt by the Committee that the inter-se seniority of some of the candidates working in a single organisation/cadre should not alone carry any weight. It mentions that the Committee in its meeting on 21.04.2010 decided to invite 6 candidates for personal talk and later included Sh. S.C. Seddey as the 7th candidate. Of course, the minutes of the meeting dated 21.04.2010 have not been provided to us. The Committee goes on to say the following:-
With reference to the seven candidates who appeared for the personal talk, the Search Committee examined the CVs and the professional background, the level of their knowledge in official statistics, their involvement and contribution to the system, their exposure to international statistical scenario, and their commitment. Their relative professional merit relevant to the post of CSI, their knowledge about the national and international statistical systems, their personal talk and all other relevant material were considered by the Committee in its last meeting held on 8th May 2010. the Committee also considered the views of Prof. R. Radhakrishna, Chairman of the National Statistical Commission who has been a special invitee in all its meetings. The Committee has decided not to assign any marks to any candidate. 9.1 There is no mention about the eligibility criteria and whether the candidates who were being interviewed and finally recommended had, in fact, satisfied the eligibility criteria or not. Neither from the record which has been placed before us can we discern any logic as to how candidates were short-listed and others were eliminated. Normally, the candidates who do not satisfy the eligibility criteria are eliminated and not considered for inclusion in the list of eligible candidates. If this list is very long an intelligible criterion is applied to prepare a short-list of candidates who are invited for further interaction. Besides, there is no discussion about the relative merits of the candidates. The Search Committee itself had declined to assign any marks in respect of the candidates or to assign any order of merit in respect of the two panelists who were recommended to the government for consideration.
10. We have given serious consideration to the submissions of the respondents that the Tribunal is not an appellate forum which can interfere with the recommendations of Committee of Experts constituted by the Government of India for selection of a suitable candidate for the post of CSI. We have also considered the ruling of the Honble Supreme Court in the case of Dr. Basavaih (supra) which says that the Court should show deference to the recommendations of a Committee consisting of distinguished experts in the field and its further direction that the Court should not sit as an appellate Court on the recommendations of a Committee of leading Experts in the field concerned. This judgment was being made in the context of selection to the post of Reader in Sericulture and it was stated that in academic matters the Court had a very limited role to play and it should go by the decision of the Committee of Experts. The factual narration of that case shows that the advertisement mentioned the qualification as a Doctorate Degree or equivalent published work and the candidate whose appointment had been impugned was declared as qualified on the basis of evaluation of his papers. Therefore, the Apex Court held that the candidate who was declared as having the prescribed qualification on the basis of evaluation of his papers could not have been disqualified by the Honble High Court. The facts in the present case are different. As has been discussed earlier, the issue is whether respondent No.3 satisfied the eligibility criteria prescribed by the Government in the Notification dated 08.05.2006 and mentioned in the Advertisement dated 12.02.2010.
10.1 The second case of Hari Bansh Lal (supra) cited by the respondents related to appointment of a candidate to the post of Chairman of State Electricity Board. The Honble Supreme Court, on examination of the facts, came to the conclusion that the appointment was in accordance with the provisions of the Act and the Rules and since there was no age limit prescribed in the Rules for appointment to the post of Chairman, the order of the High Court was over-turned and the decision of the Government about the appointment was upheld. It was further held that suitability or otherwise of a candidate for appointment to a post is the function of the appointing authority and not of the court unless the appointment is contrary to statutory provisions/rules. This principle is unexceptionable. It is not the job of the Tribunal to determine relative merits of the candidates. Nevertheless, the ratio of the judgments of the Honble Supreme Court cited by the applicant and discussed earlier lays down the maxim that the candidate must satisfy the eligibility criteria prescribed under the rules and the advertisement notice.
10.2 The next issue is whether this Tribunal can issue a direction which is in the nature of quo warranto. It is without doubt that the Tribunal is not a Constitutional Authority and, being a creature of a statute, it has to derive its jurisdiction from the provisions of Administrative Tribunals Act, 1985. Section-14 of the Act deals with the question of jurisdiction, powers and authority of the Central Administrative Tribunal and Section-19 of the Act states that any person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal may make an application for redressal of his grievance. In this case the applicant, who was admittedly a candidate for appointment and was short-listed by the Search Committee, has been aggrieved by the procedure adopted by the Committee in recommending the name of Respondent No.3 who, according to the applicant, did not satisfy the eligibility criteria. Therefore, there was a legitimate grievance for him in the matter of recruitment to a civil post to file this application. The notice issued at the time of the filing the application clearly mentions that any appointment to be made shall be subject to the decision of the OA. In that view of the matter, there is no need for us to consider whether a direction in the nature of quo warranto has to be issued in this case. This issue was emphasized by Mr. Mohanty. As said earlier, Mr. Mohanty was eliminated on the ground of being under-aged. He cannot be said to be aggrieved by the selection of others. It is only an aggrieved person who can file an O.A. under the Administrative Tribunals Act, 1985.
11. Respondents themselves in their counter-reply at paragraph-1.18 have mentioned:-
While processing applications for the post of Chief Statistician of India, it may so happen in a given situation as in the instant case that more than two candidates might be suitable to hold the post. But, the Search Committee has to recommend only two names for the post and for that purpose it has to go by relative merit of the candidates. The Search Committee did exactly that in the instant case and hence, there was no violation of the extant rules. In other words, there were other candidates who were suitable to hold the post but the Search Committee found respondents No.3 and 4 relatively meritorious. The selection of respondent No.4 has not been challenged but as far as respondent No.3 is concerned, our foregoing discussion clearly establishes that he did not meet the requisite conditions prescribed under the policy Notification as well as the advertisement notice.
12. It is also noticed that Prof. K.L. Krishna who was included in the Search Committee was the co-author with respondent No.3 in respect of a paper entitled Measuring Interstate Differentials in Infrastructure (vide CV of Prof. Anant placed at pages 83 to 87). Since he was a co-author with Prof. Anant who was a candidate before the Search Committee where he was a Member, fair play demanded that he should have recused himself from the selection process. We do not find any substance to the other allegation in respect of Dr. Gokarn. He might have been a student of Delhi School of Economics and might have got a Ph.D. from an America University but that does not establish any material nexus between him and Prof. Anant so as to invalidate his participation in the Search Committee. Therefore, we do not accept the allegation that Dr. Gokarn was positively biased in favour of Prof. Anant. Besides, the allegation of bias is excluded in the present case by the element of plurality in the process of decision-making.
12.1 The applicant has found fault with the association of Prof. Radhakrishnan, Chairman of the National Statistical Commission in the deliberations of the Committee when he was not a Member. We do not find any infirmity in associating him as a special invitee. The CSI, admittedly was to function as the Secretary of the Commission of which Prof. Radhakrishnan was the Chairman. Therefore, there was nothing unusual in associating him informally in the selection process. He could have given his opinion but the responsibility for the final decision lay with the Search Committee Members, who were very distinguished persons on their own right. Therefore, we repel the contention that mere association of Prof. Radhakrishnan would invalidate the selection process.
12.2 As regards the contention that there should have been Recruitment Rules to fill up the post of CSI which has a permanency about it, we find that the Govt. Notification dated 08.05.2066 itself, which deals with the constitution of the National Statistical Commission, has elaborated the method of appointment, tenure and service conditions of the post of CSI. The method of recruitment prescribed is clear, unambiguous; it is neither discriminatory nor conferring arbitrary power.
12.3 The validity of the said Notification has not been challenged in this O.A., rather its prescription has been relied on to impugn the selection made by the Search Committee.
12.4 Selection of a candidate to a high office through a Search Committee is not a new innovation, nor is it against the principles outlined in the Office Memorandum dated 30.07.2007 of the Department fo Personnel and Training. Paragraph 4.1(v) of the O.M. says that Search Committee should be constituted only for sufficiently senior posts at the level of Director (in the scale of Rs.14300-18300) or above, which require specialized scientific/technical knowledge and experience. The post of CSI admittedly fits into this category.
13. However, we find that the short-listing of candidates has not been made on the basis of any reasonable criteria. Although the eligibility conditions prescribed by the Government in the Notification dated 08.05.2006 were placed before the Search Committee and noted by them time and again, they should have taken those conditions into consideration for short-listing of candidates, or if they had any other fair and reasonable criteria that should have been mentioned. The argument that Prof. Anant was a distinguished economist and in that capacity satisfied the condition of having Statistical and Managerial experience in a large Statistical Organization does not hold water. It is not only in Economics but in almost a large number of disciplines where data are analyzed through a process of inductive logic that statistical tools are employed, but that does not make professionals of those disciplines eligible for the post of CSI. In this context, the observations of Honble Supreme Court in the case of Tripura Sundari Devi (supra) becomes significant. It is not a matter only between the appointing authority and the appointee. If it would have been in the knowledge of the public that such an elastic interpretation would be employed, many other distinguished Economists and Social Scientists would have applied for the post. Therefore, the matter is not confined to the Appointing Authority/Search Committee and the final selectee, but is one involving equal opportunity as guaranteed by Article 16 of the Constitution to all similarly placed. Therefore, the conclusion is irresistible that no one who did not satisfy eligibility criteria could have been considered in selective relaxation of those conditions.
14. In the circumstances, despite giving our anxious consideration to the fact that the selection to a high office on the basis of recommendations of a Search Committee consisting of high dignitaries and experts on the field should not be ordinarily interfered with, we are left with no alternative but to say that inclusion of respondent No.3 in the recommendations of the Search Committee was not in accordance with the eligibility criteria prescribed by the Government and mentioned in the advertisement notice. Therefore, the recommendation of the Search Committee and appointment of respondent No.3 on the post of CSI which was made subject to the outcome of this O.A. are set aside. In the result, the Search Committee, which is required to give a panel of two names, is directed to reconsider the matter keeping in view the eligibility criteria prescribed by the Government as well as in the notice inviting applications and give their recommendations afresh within a period of eight weeks from the date of receipt of a copy of this order. The O.A. is allowed to the extent as aforesaid. No costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber) Member (A) Member (J) /vinita/