WP(C) 1714/2009 BEFORE HON’BLE MR JUSTICE AMITAVA ROY JUDGMENT AND ORDER(ORAL) The selection of the Respondent No.4 and his appointment on the bas is thereof to the post of Member Secretary of the Pollution Control Board, Assam ( hereafter for short referred to as the ’Board’) has been subjected to challe nge in the instant proceeding. In that selection, the petitioner was a candida te amongst others contending for the said post. Initially, by order dated 30.4.2 009 this Court restrained the official respondents from acting on the joining re port of the Respondent No.4. Later on, while issuing Rule, the prayer for contin uance of the said interim relief was declined. 2. I have heard Mr DK Mishra, Senior Advocate assisted by Mr AM Bujorba ruah, Advocate for the petitioner, Mr BJ Ghosh, learned State counsel for the Re spondent No.1, Mr AK Goswami, Senior Advocate for the Board and Mr SS Dey ,Advoc ate assisted by Mr M Nath, Advocate for the Respondent No.4. 3. The petitioner’s commentary of facts discloses that he was appointed as an Assistant Engineer in the Board on 28.3.1977 and was thereafter promoted a s Environmental Engineer on 18.8.1981. He further rose to the post of Senior Env ironmental Engineer on 30.1.89. According to him, the Respondent No.4 is junior to him, he having joined the Board as an Assistant Engineer on 4.1.1979 and prom oted as Senior Environmental Engineer on 26.5.2003. Following a spate of litigat ions involving the post of Member Secretary of the Board on various grounds, th is Court finally by its order dated 26.6.2007 passed in WP' No.3133/2007 institu ted by one Kalyan Shankar Chakraborty, left the authorities of the Environment and Forest Department, Govt. of Assam to work out the specified norms of eligi bility on the basis of the relevant provisions of the Water (Prevention and Con trol of Pollution) Act, 1974, Air( Prevention and Control of Pollution) Act, 198 1 as well as the recommendations of the Supreme Court Monitoring Committee for s election to the post of Member Secretary and to complete the process within the time limit as fixed thereby. It was further directed that after the selection p roceedings are over, the outcome thereof would be placed before the Court in a s ealed cover for such further orders that may be considered necessary. The reserv ation expressed in WP( C) No.3144/2007 with regard to the participation of the then Chairman of the Board in the proceeding of the Selection Committee was n ot entertained and this Court refrained from passing any order restraining him from taking part in its deliberations. Noticing that a time frame had been fixe d by it for completion of the selection process for appointment to the aforemen tioned post , it permitted the Commissioner and Secretary to the Government of Assam, Environment and Forest Department ( hereafter referred to as the ’departm ent’) to discharge the duties thereof in the interregnum. 4. The selection was accordingly held on 18.8.2007 whereafter the proce edings thereof were duly placed before the Court. Meanwhile, the pending writ petitions amongst others WP(C) No.3133/2007 having been laid before a Divisio n Bench of this Court on the basis of orders to this effect, the same came up fo r consideration on 9.5.2008. Thereat it was submitted on behalf of the petitio ner in WP( C) No. 3133/2007 i.e. Kalyan Shankar Chakraborty that he was not inte rested to pursue the matter and that he would be satisfied if the results of t he selection process are kept in a sealed cover to be opened and placed on re cord. On a scrutiny of the selection process, it transpired that the Selection Committee had drawn up a list of two candidates namely the Respondent No.4 an d the petitioner in that order of preference for appointment to the post of Mem ber Secretary of the Board. Taking note of the submission made on behalf of the State Government that it was willing to appoint the person assessed to be the best by the Selection committee, the Division Bench of this Court by order dated 9.5.2008 observed that it hoped and trusted that the government would appoint the respondent No.4 to the above post. 5. An application for review being Review petition No.54/2008 was prefe rred by the present writ petitioner against the said observation which, however, was rejected by the Division Bench on 29.5.2008. Being dissatisfied, the writ p etitioner instituted Civil Special Leave petition being SLP( C) No.16584-16587/2 008 against the orders dated 9.5.2008 and 29.5.2008 before the Hon’ble Supreme c ourt. By its order dated 19.11.2008, the Apex Court dismissed the appeal obse rving however, that the same would not preclude the writ petitioner from challe nging the appointment made in accordance with law. The petitioner is thus befor e this Court with a fresh assailment being equipped with this liberty on the g round that the recommendation of the Respondent no.4 has been in gross transgre ssion of the criteria for selection contained in the letter dated 21.7.2007 is sued by the Secretary to the Govt. of Assam, Environment and Forest Department in compliance of the directions to that effect vide the order dated 27.7.2007 passed by this Court in WP( C) No.3133/2007. 6. Having regard to the contour of the impugnment in the instant proceed ing, it is not considered essential to dilate on the facts pertaining the othe r writ petitions accompanying WP ( C) No.3133/2007 in details. As the petitione r’s representation dated 29.12.08 before the concerned departmental authority s eeking redress failed to evoke any response and instead by order dated 24.4.09 , the Respondent No.4 was appointed as the Member Secretary of the Board, he has approached this Court for judicial intervention. 7. The Board in its affidavit, while affirming the particulars of the service profile of the two contenders as set out in the writ petition has, in substance , averred that the petitioner had earned Outstanding grading i n the ACRs for all the relevant three years. The Respondent No.4 , it has assert ed has no such grading to his credit during the relevant period. Instead, he has been awarded adverse remarks during those years. The details of the above has been set out by the Board as hereunder :- Sl No. Name Period Grading/remarks by accepting authority. 1. Hemanta Kumar Gogoi i)2.9.04 to 6.8.04 6.1.05to ii)31.1 2.05 iii)1.1.06 to 27.7.07 A.M. i) Outstanding ii)Outstanding iii)Outst anding 2 Kamal Kumar Dutta i)1.4.05 to 31.3.06 ii) 1.4.06 to 31.3.07 i)Very poor ii)Not satisfactory While admitting the receipt of the petitioner’s representation, the Board, howev er, has expressed its disinclination to act on it construing it to be inappropri ate on its part to interfere with the recommendations of the Selection Committ ee. 8. The Respondent No.4 while substantially affirming the background of facts leading to the passing of the order dated 26.6.2007 has pleaded that after the initiation of the process, the Chairman of the Board on 31.7.2007 ha d forwarded the names of seven candidates along with the relevant service recor ds to the Commissioner and Secretary to the Govt. of Assam, Environment and For est Department for their assessment by the Selection Committee. In the said lett er, it was inter alia mentioned about the pendency of a vigilance case against the writ petitioner . He being on deputation at the relevant years, his ACRs t herefor were also not forwarded. According to the answering respondent, the writ petitioner is a named accused in ACB PS Case No. 14/2004 registere d under Sections 120(B)/420/409/468 IPC in connection with which ,he had meanwh ile obtained an order of anticipatory bail from this Court. Asserting that the investigation of the said case is still proceeding, this respondent has questi oned the correctness of the petitioner’s claim of having been graded ’Outstandi ng’ in the ACRs of the relevant years. He has maintained as well that he had never been communicated with any adverse remark in his ACRs for t he last five years and more particularly for the years relevant for the selectio n. He has claimed to be better qualified than the writ petitioner and therefore , has endorsed his recommendation to be the best recommended candidate for the post. He has enumerated different areas of his achievements and excellence in service seeking to reinforce his claim of a better candidate. He has affir med that pursuant to the notification dated 29.4.2009 issued by the Commissioner and Secretary to the Govt. of Assam, Environment and Forests Department appoint ing him as the Member-Secretary thereof, he had duly submitted his joining repo rt on 30.4.2009 which was also accepted by the appropriate authority. 9. The petitioner, in his affidavit-in-reply while reiterating hi s challenge to the selection process on the ground alluded hereinabove, has int er alia contended that the pendency of the investigation in ACB PS Case No 14/20 04 per se is not a factor disqualifying him to be considered for the said post i n the face of the office memorandum No.PLA(V) 36/2002/327 dated 19.3.2008 of th e Political (Vigilance) Department of the Govt. of Assam clarifying that vigilan ce status vis a vis the officers due for promotion would be relevant only if pr osecution on criminal charge against him is pending. According to the petitione r , as at all relevant times no such prosecution was pending against him, he wa s not ineligible to be considered for being promoted/appointed to the post invo lved. While disclosing his curriculam vitae as well to evince his worth fo r the post, he as well ,has assert ed about the pendency of various enquiries a gainst the Respondent No.4 rendering him unsuitable therefor. 10. The State Government has chosen to abstain from filing its count er. 11. Mr Mishra has emphatically urged with reference to the minutes o f the Selection Committee that it being apparent therefrom that it had failed t o adhere to the norms prescribed for the selection, its recommendation preferri ng the Respondent No.4 over the petitioner is per se inoperative ,null and void is liable to be adjudged as such. As the said minutes do not disclose any endeav our on the part of the Selection Committee to make its recommendation on the ba sis of the criteria merit with due regard to seniority on a scrutiny of the service records , it is non est in law. In absence of any semblance of consider ation of the ACRs of the candidates for the relevant period , an essential det erminant for judging their comparative suitability, the impugned recommendat ion is incurably illegal, he urged. The learned Senior counsel for the petitio ner with reference to the pleadings of the parties, has pleaded that those as w ell endorse this cardinal failure of the Selection Committee invalidating its r ecommendations. He has therefore argued that in the facts and circumstan ces of the case, the impugned recommendation is liable to be declared non exist ent and inoperative in law and consequently the appointment of the Respondent No.4 to the post of Member-Secretary of the Board ought to be annulled. 12. Mr Talukdar, learned State counsel has submitted that the govern ment as required had forwarded all relevant papers to the Selection Committee and on the completion of the process in terms of the recommendations made by it, the Respondent No.4 has been appointed to the post involved. The learned St ate counsel has produced the relevant official records for the perusal of this Court. 13. Mr Goswami while abiding by the stand of the Board in its affidavit ha s refrained from offering any comment on the recommendation of the Selection Co mmittee. 14. Mr Dey, while admitting that the Respondent No.4 is junior to the petitioner in service, has insisted that having regard to the criteria invo lved for selection to the post of Member-Secretary of the Board i.e. merit with due regard to the seniority , the Selection Committee on a consideration of all relevant aspects , having ascertained him(Respondent No.4) to be more meritor ious and suitable for appointment recommended him to be appointed and as such , this Court in the exercise of its power of judicial review would not sit in app eal, unless the conclusion is perverse. As the recommendation of the Select ion Committee on the basis of the materials on record bearing on the unsuitabili ty of the candidates cannot be denounced as arbitrary being in disregard thereo f, no interference therewith is called for, he urged. With reference to Rule 10 of the Assam Services ( Confidential Rolls) Rules, 1990(hereafter referred to as the ’Rules’), he has maintained that uncommunicated adverse remarks in th e ACRs of an employee cannot be taken note of while appraising his merit and s uitability for any public post and thus the stand of the petitioner and the Boa rd in this regard is wholly untenable and misconceived and therefore ought not to be taken cognizance of by this Court. 15. The competing pleadings and the arguments based thereon have be en carefully attended to. The parties in the present adjudication are not in i ssue on the norms applicable for selection for appointment to the post of Member -Secretary of the Board. There is no wrangle at the Bar that in terms thereof, both the petitioner and the Respondent No.4 are eligible to be considered inco nformity therewith . Neither any challenge to the composition of the Selection Committee nor any bias or malice as such has been attributed to it. The crite ria for the selection for ready reference needs extraction: (ii) The Selection Committee will recommend selection on the basis o f merit with due regard to seniority taking into consideration qualification, se niority and confidential rolls of the candidates for the last three years. 16. Obviously therefore, the enjoinment of the selection precepts or dain that the Committee would marshal ’merit with due regard to seniority by t aking into account the qualification, seniority and confidential rolls for the relevant period of the candidates. The confidential rolls of the candidates f or the last three years from before the date of selection therefore is an inseve rable measure to evaluate the comparative suitability of the candidates for re commendation. 17. The projections in the Annual Confidential Reports of the peti tioner and the Respondent No.4 as alluded hereinabove which stand affirmed by t he disclosure from the official records placed at the disposal of this Court u nfailingly demonstrate petitioner’s superior service profile over the Responden t No.4. The minutes of the Selection Committee held on 18.8.2007 recommending the Respondent No.4 and the writ petitioner in the panel in order of merit in the said order, however, does not clearly refer to any scrutiny of their respe ctive Annual Confidential Reports for the period relevant. The recommendation a s the minutes discloses had been on a consideration of the educational qualifi cation, service experience , special knowledge , extra curricular activities , administrative skills etc. of the candidates. Though some of these aspects nam ely, service experience, special knowledge, extra curricular activities and adm inistrative skills are otherwise traceable to the various inputs in the Annua l Confidential Reports of the candidates with the state thereof as on date, the Committee ought to have been more transparent in objectivity and expression on the details of the scrutiny it made. This is more so, as the mark-sheets in the interview disclose columns of the above heads only on which the candid ates have been appraised for final recommendation. As the ACRs of a candidate for the last three years assuredly is to have a definitive bearing on the ul timate analysis for eventual recommendation as mandated by the selection norm s, in the estimate of this Court, the Committee had been cagey in omitting to r efer to their conclusion on the relevant Annual Confidential Records. Though i n the exercise of the powers of judicial review ,this Court does not wield an appellate jurisdiction over the recommendations of the Selection Committee for appointment to a public post, interference therewith would be permissible i f the same prima facie is not demonstrative of meticulous adherence to the f ormulated stipulations for selection. The ultimate recommendation of the Select ion Committee in such a context though is expectedly subjective , the same to be sustained must essentially disclose traits of objectivity attuned to the s election edicts. The same is conspicuously missing in the instant case. 18. The pleaded stand of the Board proclaims in unequivocal terms that the Annual Confidential Reports of the candidates including that of the p etitioner had been placed with the Selection Committee for consideration. It h as also endorsed the entries in the ACRs of the writ petitioner and the Resp ondent No.4 as have emerged from the pleadings. Noticeably, neither the writ pe titioner nor the Respondent No.4 disputes the pendency of the investigation o f the ACB Case or, the enquiries against them respectively. The petitioner’s e ndeavour however , on the basis of the office memorandum dated 19.3.2008 of the Political (Vigilance ) Department, Govt. of Assam has been to suggest that mere pendency of such investigation would not render him ineligible for the post. Be that as it may, as there is no material on record to proclaim that these aspects had been taken note of by the Selection Committee , any dilation in this regard is considered inessential . 19. The plea of non communication of the adverse remarks in the Ann ual Confidential Reports of the Respondent No.4 assumes significance at this ju ncture. None of the official respondents has volunteered to respond to this contention of the said respondent. The remarks contained in the ACRs of the Res pondent No.4 for the period relevant and as referred to by the Board by any st andard have to be construed as adverse , having regard to the yardstick of su itability prescribed. In view of the mandate of Rules 10,11 and 12 of the Rules such adverse remarks in law ought not to be acted upon to the prejudice of the incumbent concerned without affording him an opportunity of representing ag ainst the same. In absence of any factual input in this regard, it is neither p ossible nor expedient to return a finding on this count. As a matter of fact, o n a pointed query made by this Court in course of the hearing, the learned couns el for the official respondents could not furnish any answer thereto. It is no t discernible as well from the minutes of the Selection Committee that it had opted to overlook the adverse remarks in the ACRs of the Respondent No.4 due to non communication thereof. 20. On a totality of the considerations as above, the recommendation of the Selection Committee as recorded in its meeting held on 18.8.2007 cannot be sustained and is interfered with. The official respondents are hereby direc ted to reenact the process on the basis of the criteria prescribed for such se lection however, strictly in accordance with law, having regard to the determina tion made hereinabove. As the post involved is strategic in nature and does not admit of undue delay, for recruitment thereto, the exercise as directed should be completed within a period of one month from today. For this period of one mo nth, the Commissioner and Secretary to the Govt. of Assam, Environment and Fores ts would attend to the duties relatable to the post of Member-Secretary , Pol lution Control Board, Assam. Necessary consequential steps be taken forthwith . This decision, it is made clear , ought not to be construed to be recommending e ither the writ petitioner or the Respondent No.4 for the post involved. 21. The petition stands allowed in the above terms. No costs.