IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE K.C. BHANU W.P. Nos. 14614, 14615 and 14616 of 2004 WRIT PETITION NO : 14614 of 2004 Between: P.Parameswaran Potti P.Parameswaran Potti Singareni Collieries Company Limited, Adilabad District. ..... PETITIONER AND 1 The Chairman and Managing Director Singareni Collieries Company Limited, Hyderabad. 2 The Chief Secretary to State of A.P General Administration Department Secretariat, Hyderabad. 3 J.V. Dattatreyulu Son of and age not known O/o. the Director (Planning and Projects) Kothagudem, Khammam District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, order or direction more in the nature of writ of mandamus directing the respondents to promote the petitioner as Director (Planning and Projects) by declaring the office order Ref.No.CRP/PER/C/25/2061 dated 11.8.2004 issued by the 1st respondent as illegal, bad, arbitrary and mala fide and consequently set aside the same. Counsel for the Petitioner: MR.J.R.MANOHAR RAO Counsel for the Respondent No.1: MR.K.SRINIVASAMURTHY Counsel for the respondent No.2: Government Pleader for G.A.D. Counsel for the respondent No.3: Mr. L.N.R. Rajeswar Rao WRIT PETITION NO : 14615 of 2004 Between: P.Parameswaran Potti, S/o.P.Parameswaran Potti, I K & Chennur, Singareni Collieries Company Ltd., Adilabad Dist. ..... PETITIONER AND 1 The Chairman & M.D., Singareni Collieries Company Ltd., Hyderabad. 2 The Chief Secretary to State of A.P., General Administration Dept., Secretariat, Hyderabad. 3 D.L.Ramakrishna Prasad, General Manager (M-2) Corporate planning & projects, Corporate, Kothagudem, Khammam Dist. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, order or direction more in the nature of writ of Mandamus directing the respondents to promote the petitioner as Director (Planning and projects) by declaring the office order Ref.No.CRP/PER/C/25/2064 dated 11-8-2004 issued by the 1st respondent as illegal, bad, arbitrary and malafide and consequently set aside the same. Counsel for the Petitioner:MR.J.R.MANOHAR RAO Counsel for the Respondent No.1: MR.K.SRINIVASAMURTHY Counsel for the respondent No.2: Government Pleader for G.A.D. COUNSEL FOR RESPONDENT NO.3: Mr. L.N.R. Rajeswar Rao WRIT PETITION NO : 14616 of 2004 Between: P. Parameswaran Potti, S/o. P. Parameswaran Potti, 1 K & Chennur, Singareni Collieries Company Limited, Adilabad District. ..... PETITIONER AND 1 The Chairman and Managing Director, Singareni Collieries Company Limited, Hyderabad. 2 The Chief Secretary to State of A.P., General Administrative Department, Secretariat, Hyderabad. 3 Shashi Kapoor, Son of and age not known, (M-2) Estates, Kothagudem, Khammam District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ, order or direction more in the nature of Writ of Mandamus directing the Respondents to promote the petitioners as Director (Planning and Projects) by declaring the office order Ref.No. CRP/PER/C/25/2063 dated 11-8-2004 issued by the 1st respondent as illegal, bad, arbitrary and mala fide and consequently set aside the same. Counsel for the Petitioner:MR.J.R.MANOHAR RAO Counsel for the Respondent No.1: MR.K.SRINIVASA MURTHY Counsel for the respondent No.2: Government Pleader for G.A.D. The Court at the admission stage made the following : The Hon’ble Sri Justice K.C. Bhanu W.P. Nos. 14614, 14615 and 14616 of 2004 COMMON ORDER: Since common question is involved in all these matters, they are being disposed of by a common order: W.P. 14614 of 2004 is filed by the petitioner challenging the office order Ref.No.CRP/PER/C/25/2061 dated 11.8.2004 in selecting the 3rd respondent therein as Director (Planning and Projects), SCCL; W.P. 14615 of 2004 is filed challenging the office order Ref.No.CRP/PER/C/25/2064 dated 11.8.2004 in selecting and promoting the 3rd respondent therein as Chief General Manager and W.P. 14616 of 2004 is filed challenging the proceedings in Ref.No.CRP/PER/C/25/2063 dated 11.8.2004 in selecting and promoting the 3rd respondent therein as Chief General Manager. The petitioner in all these writ petitions challenges the proceedings of the 1st respondent. The brief facts that are necessary for the disposal of the present writ petitions may be stated as follows: The petitioner was initially appointed as a Mining Graduate Trainee in the year 1975. He was promoted as under Manager in the year 1977 and as Assistant Manager in the year 1979. Later he was promoted as Colliery Manager in the year 1983 and as Superintendent of Mines in the year 1988 and further promoted as Deputy Chief Mining Engineer in the year 1991 and Additional Chief Mining Engineer in the year 1997. Later he was promoted as General Manager in the year 2001. It appears that he is working as Project Officer, IK and Chennur Mines from June, 2003. To fill up the vacancies of Director (Planning and Projects), Chief General Manager (M-3), he was called for interview by letter dated 27.7.2003. According to the said letter, interviews were to be held on 2.8.2004 in the chambers of Chief Secretary, Government of A.P. Secretariat, Hyderabad to the post of Director (Planning and Projects)/Chief General Manager. The 3rd respondent in each of writ petitions is junior to him. In total there were 5 names. According to the regulations the post of Director/Chief General Manager is the selection post. It is to be filled basing on the merit-cum-seniority. According to him, he is having excellent record of service. There are no adverse remarks against him at any time. Being senior most and meritorious the respondents ought to have selected him to the post of Director (Planning and Projects)/Chief General Manager. Even though interviews were held on 2.8.2004, the results were not published immediately. On 11.8.2004 a news item appeared to the effect that the 3rd respondent was selected to the post of Director (Planning and Projects)/Chief General Manager. According to the petitioner, he fared well in the interview held on 2.8.2004. It is not known why he was not selected to the post of Director (Planning and Projects)/Chief General Manager. According to him, the record of the 3rd respondent in each of the writ petitions is average and he was selected for extraneous reasons. Therefore, the selection of 3rd respondent is illegal, arbitrary and mala fide. Hence the writ petitions. The respondents filed counter affidavit stating that there has been no violation of any rule or regulation or a rule having any statutory force to attract the provisions of Article 226 of the Constitution. The selection is by way of interview and hence the conduct of the senior most person is of no relevance. The selection of Chief General Manager is purely on merit and this merit will be adjudged not only on track record as reflected in the Performance Appraisal Reports but also in the interview to be conducted by a High Level Committee. Since the selection is by way of interview, merit will be decided by the members during the interview and the selections will be finalized accordingly. The allegation that the selection to the post of Chief General Manager is not correct. The respondent- company has followed the rules which are applicable for selection of functional Directors. The most suitable candidate will be selected by the committee based on merit. Out of 5 members of the selection committee, 4 members are outsiders and the selection can never be said to be mala fide under any reason whatsoever. The interviews were held on 2.8.2004 and the 3rd respondent was found most suitable to be selected both by his track record as reflected in the Performance Appraisal Reports and also in the interview. As seen from the appraisals, the 3rd respondent is more meritorious as compared to the petitioner. The allegation that the selection of 3rd respondent was for extraneous reasons is untrue and incorrect. It is denied that the selection is arbitrary and mala fide and the petitioner has failed to substantiate this allegation which has been made without any material basis. The departmental promotion committee is the most competent body to decide the merit and this merit cannot be challenged by way of writ petition as it amounts to invading the professional competency of the members forming the selection committee. Hence the respondents pray to dismiss the writ petition. The petitioner filed additional affidavit stating that he was not having information regarding promotions effected during 1999, 2002 and 2003 and he was not having relevant rules at that point of time. The rules were neither published nor put on notice board. If the respondents want to follow the rules while making promotions the same should be published and made available to all. Every employee is having a right to know the procedure which is to be followed in the matter of promotion. During the year 1999 and subsequent years when the post of Director was filled in, the authorities took into consideration the seniority in the cadre of General Manager. As the appointment to the post of Director is by a selection committee, it should be treated as seniority-cum-merit. It is stated that in the counter the respondents have stated that the rules were framed in the year 1994 for filling up the posts of Functional Directors but according to rule 8 selection to the post of Director is only basing on the interview by the selection committee and the rules do not prescribe any other guidelines as to assessment of the merit. The rules do not permit for taking into account the performance appraisal report while selecting the candidate to the post of Director. According to him, he is having 10 years of experience in Planning Department and 18 years of Field experience in under ground mining in various capacities. Thus he is having requisite experience to hold the post of Director (Planning and Projects). While he was working in Planning Department he was well acquainted with the procedures to be followed with the various Government agencies to get approval of projects. On the other hand, the 3rd respondent is not eligible to hold the Director (Planning and Projects) as he was not having any experience in planning projects. The selection committee ought to have taken into consideration the experience gained by him in Planning Department and Projects Wing. It appears that the appointment was made only by taking into account the performance appraisal reports. The rules do not permit to take into consideration Performance Appraisal Reports and the selection of 3rd respondent to the post of Director (Planning and Projects) is not in accordance with law. According to the guidelines issued for maintaining the Performance Appraisal Report, it should be used as tool for human resources development and it is not meant to be a fault-finding process but a developmental one. At no point of time the Performance Appraisal Reports were communicated to any employee including the petitioner. The selection to the post of Director should be only basing on the performance in the interview and performance in the concerned field. The 3rd respondent in each of the writ petitions is not having experience in the planning department and as such he ought not to have been selected to the post of Director (Planning and Projects). Hence the petitioner prays to allow the writ petition. The respondents filed additional counter affidavit stating that the selection held to the post of Director (Planning and Projects) is not a promotion whereas the tenure of Technical Directors is an appointment for a fixed term of 2 years and it is not a promotion. Unless the incumbent performance is found to be satisfactory, his services for next tenure will not be considered. All the while it is a selection post and clear terms are there for appointment as Technical Director. No such selections were held in the year 2003. The Technical Director posts are operating in the company since 1985. The post is the highest in the hierarchy next to the Chairman & Managing Director of the company. The post of Technical Director is not on seniority-cum-merit. The selection is by way of interview and hence the contention of seniority only does not arise. The selection of Director post is purely on merit and this merit will be adjudged by not only the track record as reflected in the Performance Appraisal Reports but also in the interview to be conducted by the selection committee. The Performance Appraisal Reports (PARs) are evaluated in principle for the purpose of confirmation, crossing of efficiency bar and promotion etc. as enumerated in the proceedings of the respondents dated 20.5.1972. Mere experience in the Project Planning Department alone will not entitle the petitioner to occupy the Technical Director post. The 3rd respondent has fulfilled the requisite conditions as enumerated in the selection rules. He is one among the other candidates selected. The entire profile of each candidate was placed before the selection committee and the selection committee had taken all the parameters which require to be taken into consideration and adjudged the suitable candidate to the post. The selection committee took into consideration the performance in the interview together with the performance recorded in the Performance Appraisal Reports for the past 5 years and selected suitable candidate for the post of Director. In the interest of efficiency of the service and also of the officers that the reports are written with greatest possible care so that the work, conduct, character and capabilities of the officer reported can be accurately judged from the recorded opinion. Therefore, the Performance Appraisal Report will have its own bearing on the selection of the post. In the petitioner’s performance for the year 2002-03 there was a remark stating “there was scope for improving his communication skills” as an advisory in nature and the same was communicated to him. The 3rd respondent is having exceptional qualities and performance as recorded in Performance Appraisal Reports. Hence the respondents pray to dismiss the writ petition. Learned senior counsel Sri L. Nageswara Rao, appearing on behalf of the petitioner, contended that there is an infraction of Rules, 1994 which provide for selection of Functional Directors in the Singareni Collieries and as per the rules the performance alone has to be taken into consideration and it is a sole criterion for selection. Therefore, the selection is vitiated for violation of rules; that the respondents departed from earlier procedure; that on earlier occasions promotion to the post of Director was made by way of seniority; that the Performance Appraisal Reports cannot be taken as a basis for selecting the candidates. The Performance Appraisal Reports have not been communicated to the concerned individuals. If they are furnished, there is a scope for the candidate to improve his performance so that he can develop to the expectations of the company and after the rules came into force on all the three occasions the senior most person was appointed as Director. The action of the selection committee lacks fair-play and it is an abuse of discretion. Therefore, he prays to quash the proceedings issued by the 1st respondent. On the other hand, learned standing counsel Sri K. Srinivasa Murthy, appearing for the respondents, contended that besides the policy the selection to the post of Director (Planning and Projects)/Chief General Manager is purely on merit and the selection committee has taken note of not only merit but also the track record of the individuals as reflected in Performance Appraisal Reports and that no mala fides are attributed to the selection committee. The promotion of the 3rd respondent is completely in accordance with the Rules. There is no factual foundation with regard to mala fides. To ascertain merit the selection committee has taken into consideration the performance in the interview and also the track record i.e. Performance Appraisal Reports. Therefore, there are no grounds to interfere with the impugned proceedings. The rules providing for selection of Functional Directors in the Singareni Collieries Limited are governed by the Singareni Collieries Company Limited Functional Directors Selection Rules, which came into force w.e.f. 30.8.1994. In pursuance of the provisions in the tripartite agreement entered into between the Government of India, the Government of A.P. and the Singareni Collieries Company, the appointment of Functional Directors shall be made by the company by a committee to be constituted by the Government of A.P. including a representative of the Government of India. The selection committee consists of the following personnel for selection of the post of Functional Directors: 1. Chief Secretary, Government of A.P.– Chairman. 2. Principal Secretary to the Government, Energy Department – Member. 3. Chairman and Managing Director, Singareni Collieries Company Limited – Convener. 4. Representative from the Department of Coal, Government of India – Member. 5. An expert in the relevant discipline/field from any organization/institute of national importance depending upon the function for which a Director is to be selected – Member. The quorum for the meeting shall be three including the Chairman. Rule 8 of the said Rules provides for selection procedure, which reads as follows: “the committee shall interview the eligible candidates (not more than 5 candidates per vacancy) and select the suitable person from the internal candidates”. Admittedly the said rules do not prescribe any other guidelines as to the assessment of merit. So also, the rules do not permit for taking note of the Performance Appraisal Reports while selecting the candidate to the post of Director. According to the learned counsel for the petitioner, since 1999 when the post of Director was to be filled in, the authorities took into consideration the seniority in the cadre of General Manager as the basis and as such the appointment to the post of Director is by the selection committee, it should be treated as seniority-cum-merit but the case of the respondents is that the selection of Chief General Manager is purely on merit and this merit will be adjudged not only by the track record as reflected in the Performance Appraisal Reports but also in the interview to be conducted by the High Level Committee. Since the selection is by way of interview, the merit will be decided by the members during the interview and the selections will be finalized accordingly. No doubt, the rules do not provide for taking note of Performance Appraisal Reports of the candidates for selection but if Rule 8 read in as a whole, it provides for taking note of Performance Appraisal Reports for selection implicitly. Rule 8 further reads: “In case there are no eligible internal candidates, the post(s) will be advertised in the leading News Papers. The up to date C.R. Dossiers of the candidates called for interview will be obtained from their employer(s). The committee shall interview the eligible candidates (not more than 5 candidates per vacancy) and select the suitable person(s). After the selection, the company shall issue orders and place the matter before the Board where necessary for co-opting the Functional Director as member of the Board. The respective Governments also will be informed”. Therefore, Rule 8 makes it clear that in case there are no eligible candidates from the company, the post will be advertised and the up to date C.R. Dossiers of the candidates called for interview would be obtained from their employer. When a departmental candidate is not suitable for promotion and in case the outsiders are called for the promotion and in case the outsiders are called for the post, then there is a specific requirement that the C.R. Dossiers will be called for from the concerned employer. Such is the case, there is no bar for the selection committee in taking into consideration the C.R. Dossiers or the Performance Appraisal Reports, to look into as one of the considerations for selection. Now it has to be seen whether the post of Director is a selection post or on merit-cum-seniority or seniority-cum-merit. Simply because on earlier occasions the post has been filled duly taking into consideration the seniority, it does not mean it should be treated as on seniority-cum-merit basis. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different, for the former greater emphasis is laid on seniority though it is not determinative factor while in the latter merit is the determinative factor. Even where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. It is well settled that while exercising the power of judicial review the court is more concerned with the decision making process than the merit of the decision itself. While examining and scrutinizing the decision making process, it becomes inevitable to appreciate the facts of a given case as otherwise the decision cannot be decided under the grounds of illegality, irrationality or procedural impropriety. To a limited extent of scrutinizing the decision making process, it is always open to the court to review the evaluation of the facts of its maker. In State of U.P. v. Johri Mal the scope of judicial review has been pointed out as follows: “The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court. The limited scope of judicial review, succinctly put, is: i. Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies. ii. A petition for a judicial review would lie only on certain well-defined grounds. iii. An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal. iv. A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a court is limited to seeing that the Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice. v. The courts cannot be called upon to undertake the Government duties and functions. The court shall not ordinarily interfere with a policy decision of the State. Social and economic belief of a judge should not be invoked as a substitute for the judgment of the legislative bodies”. It is not disputed before this court that the administrative action is subject to control by the judicial review, firstly, on the ground of illegality, secondly, on the ground of irrationality and thirdly, on the ground of procedural impropriety. In Indian Railway Construction Co. Ltd. v. Ajay Kumar it is made clear that where the action falls within any of the categories, that is to say, illegality, irrationality or procedural impropriety, they have to be established and mere assertion in that regard would not be sufficient. From the above decision it is clear that ‘irrational’ to mean as a total defiance or logic or moral standards. It is also clear that if the power has been exercised on a non-consideration or non-application of mind to relevant factors, the said exercise of power will be regarded as manifestly erroneous. So also, if the power is exercised on the basis of factors which do not exist and which are patently erroneous, such exercise