Criminal Appeal No 304 of 1991
From the Order dated 1712
1990 of the Delhi High Court in Criminal Misc
No 2656 of 1990
Anand Dev Giri Solicitor General Ram Jethmalani KG Bhagat PS Pottv Prashant Bhushan Jayant Bhushan Ms Deepa Bhushan PK Dey Ms Lata Krishnamurti MN Shroff AK Khare Ms Kamini Jaiswal PK Monohar R Sasiprabhu Ms A Subhashini A Subba Rao Ashok Bhan Ms Anil Kati yar PN Bhan RK Dixit and AM Khanwilkar for the appearing parties
Nalla Thampy Thera petitioner in person
The following Order of the Court was delivered section RATNAVEL PANDIAN J A brief resume of the facts which has given rise to the above appeals and Writ Petition would be necesSary to appreciate the unsavorous controver sies created by way of public interest litigations though 0we have decided to give only our conclusions now and the detailed reasons later in order to avoid any delay in this matter for the reasons namely 1 in the application for direction filed by the Union of India through CBI on 12791 it is submitted that the Swiss authorities would remove the blocking order on 31891 and the account holders would withdraw the large funds running into millions of dollars equivalent to crores of rupees and 757 prayed that the judgment may be pronounced by the end of August 1991 lest miscarriage of justice would be caused and 2 that the learned Additional SoliCitor General Mr Altar Ahmed appearing on behalf of the Union of India and CBI on 10891 reaffirmed the above statement of the Union of India and requested that the CBI should be allowed to proceed with the investigation without any interruption or  hin drance so that the investigation may be speeded up thereby meaning that the wheels of investigation already started moving on should be permitted to be proceeded with unfet tered and untrammelled so that the valuable evidence may be obtained from the Swiss Bank through their authorities without further loss of time otherwise the account
in the Swiss Bank now frozen may be defrozen
The Central Bureau of InvestigationDelhi police Estab lishmentAnti Corruption Unit IV New Delhi registered the First Information Report dated 22190 relating to Crime No RCIA90 ACU IV under Section 120 B read with Sections 161 162 163 164 and 165A of the Indian Penal Code read with Sections 52 51d and 5251c of the Preven tion of Corruption Act 1947 herein referred to as PC Act read with sections 409420468 and 471 of the Indian Penal Code against 14 accused of whom 3 are named they being 1 Shri Martin Ardbo former President of Ms AB Bofors SWeden Accused No 1 2 Shri Chadha alias Win Chadha so Shri Assa Nand President of Ms Anatronic General Corporation Anatronic General Companies Ltd C4 Main Market Vasant Vihar New Delhi Accused No 3 and Shri GP Hinduja New Zealand House Hay market London SW 1 Accused No 7
The rest of the 11 accused are stated in general as Directorsemployeesholdersbeneficiaries of account code and public servants of the Government of India
The core of the allegations is that these accused named and unnamed entered into a criminal conspiracy obtained ille gal gratification in the form of money from BOFORS a Swed ish company through the agent firmscompaniespersons as motive or reward for such public servants who by corrupt or illegal means or by otherwise dishonestly using their
official position as public servants caused pecuniary advan tage to themselves BOFORS the agents and others in award ing contracts to BOFORS for the supply of guns to the Gov ernment of India and in the transaction also committed the offences of criminal breach of trust cheating of Union of India  forgery and using of forged documents etc
It ap pears that the CBI has commenced its investigation during the course of which it has recorded statements of witnesses and took into their custody various documents and files relating to this Bofors deal
While it is so the CBI moved an application before the Special 758 Judge namely Shri RC Jain stating inter alia that the investigation of the case is to be conducted not only in India but also in Switzerland Sweden and other countries that an important aspect of the investigation which is to be conducted in Switzerland is to collect documentary and oral evidence relating to all aspects of the accounts in banks in Switzerland to which remittances were made by Ms AB Bofors from Sweden that in particular the authorised signatories and the beneficiaries of the said accounts have to be traced by such investigation as they are in fact the ultimate beneficiaries of the payments 1 made by Ms AB Bofors and that under the procedure followed by banks in Switzerland an authorised signatory can operate an account for the benefit of certain other persons regarding whom the authorised signatory has to submit certain declarations to the concerned bank and therefore it is very essential for the investigation of this case that the documentary and oral evidence should be collected regarding this  as well as the other aspects of the bank accounts in Switzerland
In the said application after referring to the exchange of letters dated 20289 between the Government of India and Switzer land for mutual assistance agreeing that the Authorities of both the countries shall provide to each other the widest measure for assistance in the investigation of criminal matters it has been stated that the competent authority to ask for assistance in India and abroad is the CourtTribu nalJudge or Magistrate exercising jurisdiction
The Direc tor of the CBI sent a request dated 2311990 and supple mented by another request dated 2611990 to the concerned authorities in Switzerland for freezingblocking certain bank accounts relevant to this case and the Federal Depart ment of Justice and Police Switzerland moved Shri Parrau din Judge of Geneva and the concerned Judge of Zurich who on being prima facie convinced of dual criminality and the need for investigation in Switzerland froze the relevant bank accounts in this regard on 261
1990 as intimated by the Federal Department of Justice and Police through the Embassy of India in Switzerland and that as per this infor mation the relevant accounts in the bank have been blocked upto 2821990 and that request for judicial assistance from Switzerland in this matter therefore should be made by 2821990 failing which the Swiss Law obliges the withdrawal of instructions to block the accounts and that the Federal Department of Justice and Police at Berne which corresponds to the Ministries of Law and Home Government of India have assured that the Swiss authorities would render assistance in the investigation in Switzerland in accordance with the mutual assistance agreement dated 2021989 only on receipt of a Letter Rogatory from the competent judicial authorities in India
On the above pleadings the CBI requested the Special Judge 759 to send a Letter Rogatoryrequest
to Switzerland urgently for getting the necessary assistance in the investigation to be conducted in Switzerland lest very important and relevant evidence would remain uncollected and the cause of justice would be frustrated
The Special Judge after hearing Shri Arun Jaitley the then Additional Solicitor General of India and Shri KN Sharma Deputy Legal Adviser CBI andShri Baljit Singh Senior Public Prosecutor by its considered order dated 521990 allowed the application of the CBI the relevant portion of which reads thus In the result the application of the CBI is allowed to the extent that a request to con duct the necessary investigation and to col lect necessary evidence which can be collected in Switzerland and to the extent directed in this order shall be made to the Competent Judicial Authorities of the Confederation of Switzerland through the Ministry of External Affairs Government of India subject to the filing of the requisiteproper undertaking required by the Swiss Law and assurance for reciprocity
 The Special Judge also directed certain documents to be sent  along with his letter of request such as the copy of the FIR dated 22190 mutual assistance agreement dated 20289 etc
The Court finally made a note reading thus Needless to mention that no observation made in this order shall tantamount to expression of opinion at any subsequent stage of enquiry or trial
 When the matter stood thus Shri VS Aggarwal on the strength of the notification issued by the Administrator of the Union Territory of Delhi assumed charge as a Special Judge inplaCe of Shri RC Jain
Before Shri Aggarwal the Special Judge Shri Harinder Singh Chowdhary an Advocate filed a Public Interest Litigation by filing Criminal Mis cellaneous Case No 1290 under Article 51 A of the Consti tution of India seeking the following prayers which we are reproducing hereunder In the premises your petitioners humbly request that in order to maintain the dignity prestige and the fair name of the country and the ideals enshrined in the Constitution that no rogatory letter be issued on the formal request of the CBI unless the allegations against named persons are 760 established to the satisfaction of this Hon  ble Court  It is further requested that no request for Rogatory or freezing bank account be made to Swiss Govt
unless the concerned persons are noticed and heard on the subject It is further requested that the petitioner may be permitted to join during inquiry before this Hon ble Court in the capacity of public interest litigant
It is further requested that inquiry us 340 Cr
PC be held to determine the alleged offence committed by various persons and till then all proceedings of Rogatory be stopped The Special Judge namely Shri VS Aggarwal by his considered judgment dated 1881990 dismissed the petition holding this request of the learned counsel cannot be accepted
 Finally the learned Judge made the following note Put up on 309 1990 for arguments on the question as to whether any action under Sec tion 340 of the Code of Criminal Procedure is to be initiated or not
No opinion on the merits of the main case is being expressed
 The Special Judge then issued  1 Note of Compliance and 2 Amended letter rogatory on 22890
Shri Harinder Singh Chowdhary the public interest litigant on being aggrieved by the order dated 18890 of the Special Judge filed a criminal revision before the High Court of Delhi under Sections 397 482 of the Code of Crimi nal Procedure and raised several questions of law challeng ing the legality and validity of the impugned order and made the following prayers a to quash the entire FIR No RCI A90ACU IV dated 22190 and criminal pro ceedings covered by the same
b or remand the case to the Special Judge permitting the petitioner to argue his case before the lower court and also direct the court below to decide the petition on merits
761 c direct the court that no request for rogatory letters be
made to Swiss Government till the petitioner is heard on his applica tion
dthe petitioner may be permitted to join during the inquiry to determine the question of dual criminality before the learned Special Judge in the capacity of public interest litigant and also direct the learned Special Judge to decide the question of dual criminal ity before issuing the letter rogatory
e direct the learned Special Judge not to issue any rogatory letter on the formal request of the CBI unless the allegations against named persons is established to the satisfaction of the Special Judge by cogent evidence
This revision  petition has been registered as Criminal Miscellaneous Main NO
1821 of 1990 on the file of the High Court of Delhi
During the hearing of the above case before the High Court several applications seeking implead mentintervention were filed in the proceedings among which one was filed by Mr Prashant Bhushan another by Mr N Ram and some more by various political parties
Mr Justice MK Chawla who heard the Crl
MNo 182190 passed an order dated 31290 directing all the applications for intervention to be kept on record and observed
The interveners will be heard only if the Court feels the necessity of hearing further arguments after the conclusions of the arguments of ASG appearing for the GOI and the CBI
Thereafter on 6th and 7th December 1990 Mr Justice MK Chawla heard the arguments advanced on behalf of the CBI as well of the Union of India
While it was so the Janata Dal etc
approached this Court by filing a Spe cial Leave Petition Criminal No 2320 of 1990 and this Court on 101290 upon being mentioned and hearing the learned counsel for the parties passed the following order We find on 31290 the learned Judge indicat ed in his order that several applications had been filed by different people for implead mentintervention in the proceedings and the learned Judge observed that these applications would be heard and if necessary arguments on behalf of the intervener could be permitted after other counsel are heard
Grievance has been made that these applications 762 have not been formally disposed of by the Court
We are of the view that the learned Judge should dispose of these applications by a judicial order before the matter is reserved for judgment and in case the applications are not accepted judgment should not be delivered for at least 2 days after such an order on these writ petitions is made to enable them to move this Court
 It appears that in compliance of the above directions of this Court Mr Justice Chawla heard Mr Ram Jethmalani who appeared on behalf of Janata Dal and Mr Prashant Bhushan on 111290
The learned counsel Mr Jethmalani orally re quested Justice Chawla to recuse himself from the case which request was rejected by the learned Judge
Thereafter a petition for recusation was filed which was also dismissed on 171290
After hearing the learned counsel for Mr HS Chowdhary as well for the interveners the final order was passed by Mr Justice Chawla on 191290 the relevant portion of which reads thus In my opinion the case of the petitioner does not fail within the ambit and scope of the law laid by the Supreme Court in Bandhua Mukti Morcha supra
So I hold that the petitioner has no locus standi to file the present revision petition and is thus not maintainable on his behalf
The same is hereby dismissed
As a consequent of the dismissal of the present petition holding that the petitioner has no locus standi the applicants have no right to be impleaded and their impleadment intervention applications are also rejected
So I suo moto take cognizance while exercis ing my powers under Sections 397 and 401 read with Section 482 of the Code and direct the office to register the case under the title Court on its own motion vs State and CBI
Consequently I call upon the CBI and the State to show cause as to why the proceedings initiated on the filing of FIR No RCI A90ACU IV dated 22190 pending in the Court of Shri VS Aggarwal Special Judge Delhi be not quashed
763 The sum and substance of the above order is that in the opinion of Mr Justice Chawla the petitioner Sh
Harindcr Singh Chowdhary has no locus standi to maintain the petition and consequently interveners also have no right to seek for impleadment or intervention and that the learned Judge having held so took suo rnoto cognizance of the matter for the reasons assigned in his order and directed issue of show cause notice to the CBI and the State Union of India as to why the proceedings initiated on the strenth of the FIR dated 22190 pending before the Special Judge be not quashed
It was at this stage all these criminal appeals and the writ petition have been filed in this Court
This Court on 201290 in Criminal Appeal No 30491 arising out of SLP Crl
No 247690 filed by the Janata Dal passed the following order granting interim stay  
In the meantime the reasons leading to registra tion of the suo moto proceedings would not be operative
There shall be interim stay of proceedings including hearing before the High Court
 In order to understand the scope of each of the criminal appeals and the prayer made therein we are presently giving a brief note of the appeals and the writ petition
Criminal Appeal No 30491 This appeal
is preferred by the Janata Dal against the order dated 171290 passed by the High Court rejecting its application Crl
M No 265690 in Crl
M No 182 190 filed before the High Court requesting the learned Judge to recuse himself from the proceedings
Criminal Appeal No 30591 This appeal is filed by the Janata Dal against the order of the High Court dated191290 rejecting the application for impleadment of the appellant and other intervences and also issuing suo moto notice to the State and the CBI
Criminal Appeal No 30691 This appeal is directed by Mr Harinder Singh Chowdhary the original petitioner who filed the public interest litigation before the Special Judge challenging the first part of the order of the High Court 764 dated 191290 dismissing his petition on the ground that he has no locus standi to file the petition
Criminal Appeal No 30791 This appeal is preferred by the Janata Dal questioning the correctness of the earlier order dated 31290 passed by the High Court refusing  to allow the appellant s applica tion for impleadment intervention
Criminal Appeal No 30891 The Communist Party of India Marxist has directed this appeal against the order of the High Court dated 31290 refusing to allow its application for impleadmentinterven tion
Criminal Appeal No 30991 This appeal is preferred by Indian Congress Socialist against the main order of the High Court dated 191290 dismissing his application for impleadment and taking up suo moto cognizance for quaShing the FIR
Criminal Appeal No 31091 This appeal is filed by the Union of India canvassing the legality and correctness of the order dated 5990 passed by the High Court and praying for a direction direct ing the High Court to decide the maintainability of the public interest litigation as a preliminary question
In that appeal the learned Solicitor General requested for the deletion of the second respondent Mortin  Ardbo former President MO AB Bofors Sweden who is only a proforma respondent from the array of parties and accordingly the permission was granted by this Court s order dated 133
Criminal Appeal No 31191 This appeal is filed by the Union of India and the CBI questioning the said second part of the order dated 191290 namely taking suo  moro cognizance and issuing notice calling upon the CBI and the State to show cause as to why the proceedings initiated on the strength of the FIR be not quashed
It may be noted that the appellants in this appeal have impleaded the High Court through its Registrar as a respondent
765 Writ Petition No 11491
This petition is filed by one Dr P Nalla Thampy Thera seeking certain directions relating to Bofors matter and for quashing the later part of the order dated 191290 of the High Court
Mr Anand Dev Giri the learned Solicitor General as sisted by Ms Anil Katyar and Ashok Bhan and thereafter the present Additional Solicitor General Mr Altar Ahmed Mr A Subba Rao and Mr AM Khanwilkar Advs
appearing on behalf of the Union of India as well as the CBI Mr Ram Jethmalani and Mr Shanti Bhushan both learned senior counsel assisted by Mr Prashant Bhushan appearing in Criminal Appeal Nos 304305 and 307 of 1991 and Mr KG Bhaghat the learned senior counsel appearing in Criminal Appeal Nos 306 and 305 of 1991 on behalf of Mr HS Chowdhary assisted by Mr MN Shroff besides a battery of lawyers advanced their respec tive arguments raising manifold questions of law with refer ence to the various provisions of the Constitution of India Indian Penal Code Code of Criminal Procedure andother Acts and the Memorandum of Under standing etc
for a very considerable length of time totally running for 34 full days and laid stress upon a host of decisions in sup port of their respective cases
The introverted and extro verted rhetorical submis sions made by all the learned counsel were punctuated sometimes with inflammatory re marks occasionally with discordant and embittered notes as well as esoteric statements intermittently with political over tones but at the same time with admirable ability exhibiting their profound knowledge in criminal law
In fact each one of them was trying to outwit and score a march over the other
In this connection it may be pointed out that the present Additional Solicitor General
Mr Atar Ahmed has declared unambiguously and p erspicuously that he is in full agreement with the argument of the former Solici tor General Mr AD Giri and that his present articulation serves only as supplement to that of the former Solicitor General
Though the entire submissions made by the former Solicitor General are not being extracted in this short order we feel that it would be appropriate to briefly refer to the core of the submissions of the learned Solicitor General Mr AD Giri
The learned Solicitor General stren uously urged that Mr HS Chowdhary claiming to be a public interest litigant has filed the original petition before the Special Judge as a proxy of the accused who are all behind the curtain and who by this perilous proceeding are trying to evade the dragnet of the investigation and of whom even the named accused are maintaining stoic silence all through unmindful of all the proceedings till date and that the CBI though subjected to 766 increasing uncharitable and unwarranted criticism and vili fication and also scurrilous attack with remarkable resil ience is relentlessly attempting to collect all available materials by unearthing the wider conspiracy and well knitted illegal transaction within its legally permis sible limits
It is pertinent to mention that Mr Altar Ahmed the learned Additional Solicitor General appearing on behalf of the Union of India and CBI after Mr AD Giri the former Solicitor General has relinquished his office reinforced the same arguments and further pleaded that the matter should be disposed of before the end of August 199 1 for the reasons stated supra so that the CBI may effectively carry on with the investigation
However we are not at present giving the details of the points urged except observing that the ques tion as to whether the laws are so petrified as to unable to respond to the challenges made will be dealt with in detail in our main judgment
As mentioned albeit we in order to avoid further delay in these matters are inclined to give only our conclusions the reasons in support of which will follow in our detailed judgment at a later stage
It is most relevant to note that none of the appellants before this Court save the Union of India and CBI is con nected in any way with the present criminal proceeding initiated on the strength of the First Information Report which is now sought to be quashed by Mr HS Chowdhary
Although in the FIR the names of three accused are specifically mentioned none of them has been impleaded as a respondent to these proceedings by anyone of the appellants
Even Mr Martin Ardbo former President of Ms AB Bofors who was impleaded as a proforma respondent in Criminal Appeal No 31091 has been given up by the Solicitor Gener al
Therefore under these circumstances one should not lose sight of the significant fact that in case this Court pronounces its final opinion or conclusions on the issues other than the general issues raised by the appellants as public interest litigants without hearing the really af fected personpersons such opinion or conclusions may in future in case the investigation culminates in filing a final report become detrimental and prejudical to the in dicted accused persons who would be totally deprived of challenging such opinion or conclusions of this apex Court even if they happen to come in possession of some valuable material to canvass the correctness of such opinion or conclusions and consequently their vested legal right to defend their case in their own way would be completely nullified by the verdict now sought to be obtained by these public interest litigants
Even if there are million questions of law to be deeply gone into 767 and examined in a criminal
case of this nature registered against specified accused persons it is for them and them alone to raise all such questions and challenge the proceed ings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants  We in the above background of the case after bestow ing our anxious and painstaking consideration and careful thought to all aspects of the case and deeply examining the rival contentions of the parties both collectively and individually give our conclusions as follows 1
Mr HS Chowdhary has no locus standi a to file the petition under Article 51 A as a public interest litigant praying that no letter rogatoryrequest be issued at the request of the CBI and he be permitted to join the inquiry before the Special Court which on 5290 directed issuance of letter rogatoryrequest to the Competent Judicial Author ities of the Confederation of Switzerland b to invoke the revisional jurisdiction of the High Court under Sections 0397 read with 401 of the Code of Criminal Procedure chal lenging the correctness legality or propriety of the order dated 18890 of the Special Judge and c to invoke the extraordinary jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure for quashing the First Information Report dated 22190 and all other proceedings arising therefrom on the plea of preventing the abuse of the process of the Court
In our considered opinion the initiation of the present proceedings by Mr HS Chowdhary under Article 51 A of the Constitution of India cannot come within the true meaning and scope of public interest litigation
Consequent upon the above conclusions 1 and 2 the appellants namely Janata Dal Communist Party of India Marxist and Indian Congress Socialist who are before this Court equally have no right of seeking their implead ment intervention
For the same reasons Dr P Nalla Thampy Thera also has no right to file the Writ Petition Crl No 114 of 1991 as a public interest litigant
Having regard to the facts and circumstances of the case the suo moto action of Mr Justice MK Chawla in taking cogni 768 zance in exercise of the powers under Sections 397 and 401 read with SeCtion 482 of the Code based on the convoluted and strained reasoning and directing the office of the High Court of Delhi to register a case under the title Court on its motion vs State and CBI cannot be sustained
Consequent upon the above conclusion No 4 we hold that the directions of Mr Justice MK Chawla calling upon the CBI and the State to show cause as to why the proceed ings initiated on the strength of the First Information Report dated 22190 be not quashed cannot be sustained
In the result we agree with  the first part of the Order dated 191290 of Mr Justice MK Chawla holding that Mr HS Chowdhary and other intervening parties have no locus standi
We however set aside the second part of the impugned order whereby he has taken suo moto cognizance and issued show cause notice to the State and CBI and according ly the Show cause notice issued by him is quashed
In view of the above conclusions all the proceedings initiated in pursuance of the First Information Report dated 22190 relating to Crime No RCIA90 ACU IV on the file of the Special Judge Delhi including the issuance of the letter rogatoryrequest as they stand now remain unaffected and they can be proceeded with in accordance with law
In Summation Criminal Appeal Nos 304305306 307308 and 309 of 1991 are dismissed
Criminal Appeal No 310 of 1991 filed by the Union of India against the order dated 5990 of the High Court is dismissed in view of the fact that the said order does not survive for consideration on the passing of the final order dated 191290
The Writ Petition No 14 of 1991 is also dismissed
Criminal Appeal No 311 of 1991 filed by Union of India and CBI is allowed for the reasons stated above
VPR Crl
A Nos
304 3101991 and WP No 11491 dismissed Crl
A No 31191 allowed


Summary:
The appellants being aggrieved by the promotion policy of the respondent Bank dated 31101983 read with the Circu lar dated 1391989 for promotion from the cadre of Junior Management Grade 1 to Middle Management Grade II moved the High Courts under Article 226 of the Constitution
The policy provides for two channels for promotion namely the Merit Channel and the Seniority Channel
For filling vacancies by promotion from the cadre of Junior Management Grade 1 to that of Middle Management Grade II 65 of the total vacancies were reserved for the Seniority Channel and the remaining 35 for the Merit Channel
The criterion mentioned in the policy for the Merit Channel provides 40 per cent marks for written test 10 per cent marks for seniority 20 per cent marks for performance appraisal 20 per cent marks for interview and the remaining 10 per cent marks for passing the examina  tion held by the Bankers  institute
The High Courts dismissed the writ applications
against which the appeals were filed in this Court
TIle appellants contended that the marks under all other heads amounting to it maximum of 80 per cent instead of the maximum of 40 per cent prescribed for the written test should be the proper criterion to call a candidate for interview in order to make a proper selection on the basis of merit that by taking into account the marks of written test alone there is exclusion of other meritorious candi dates whose aggregate 770 including the marks obtained under the other heads may exceed the corresponding aggregate of marks of candidates obtaining higher marks in written test alone
On this basis the policy for filling vacancies from the Merit Channel by promotion was alleged to be arbitrary
The respondent Bank contended that the Provision for the Merit Channel for promotion was made in the policy to give accelerated pro
motion to the academically brilliant persons with the object of providing incentive to them and thereby improving the quality of personnel in the higher cadre that the policy of deciding merit on the basis of written test alone has been consistently followed and the Circular dated 1391989 was merely a clarification of the manner of preparation of the Select List to make the selec tion more objective and to yield better results by getting the most meritorious candidates from all circles
Dismissing the appeals this Court HELD 1
Keeping in view the laudable object of at tracting academically brilliant candidates into the Bank s service as officers by direct recruitment by giving incen tive of accelerated promotion to the most meritorious amongst them who maintain a high standard of achievement is conducive to public interest and cannot be faulted
773C 2
Of the several heads under which the marks are divid ed for promotion to Merit Channel written test and inter view are the only ones which depend on the current perform ance
The marks under the remaining three heads of seniori ty performance appraisal and CALLB
passing of examina tion held by Bank s Institute relate to past performance of the candidate which are matters of record
It is therefore the appraisal of the current performance by written test and interview which alone is the real part for a proper apprais al of the current performance of the candidate for the purpose of assessing his merit for promotion through the Merit Channel
In this situation if the marks obtained in the written test alone are taken into account for preparing the Select List to call candidates for an interview depend ing upon the number of vacancies available in Merit Channel the criterion adopted cannot be termed arbitrary
773C F 3
The marks obtained for seniority performance ap praisal and CAIIB are based on service record and not  on appraisal of the candidate by a mode independent of service record for assessing the true current worth of the candidate
Since equal opportunity is available to all for competing through the Merit Channel in addition to the 771 prospects through the Seniority Channel the policy adopted cannot be treated as irrational discriminatory or arbi trary
773FG