* IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 168/2009 & CM No. 5472/2009 BHASKARENDU DATTA MAJUMDAR ..... Appellant Through: Mr. Sunil Gupta, Senior Advocate with Mr. Rajiv K.Garg, Advocate. versus UOI & ORS. ..... Respondents Through: Mr. R.N. Singh, Mr. A.S. Singh and Ms. Rekha Aggarwal, Advocates for Rspdt. No. 1. Mr. M.M. Sudan, Advocate for Rspdt. No. 2. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL O R D E R % 18.05.2009 Admit. Learned counsel for the respondents waive service of notice. By the consent of the parties, the appeal is taken up for final hearing. 2. This appeal is directed against the order passed by the learned single Judge in WP(C) 4135/2008 dated 9th January, 2009. 3. Few facts are that the appellant joined the respondent No.2- State Trading Corporation of India Limited in April 2001 as Executive Secretary to Chairman-cum-Managing Director of the Corporation. He is presently working as Chief General Manager of respondent No.2. A vacancy arose in the post of Director (Marketing) in the respondent No.2 and the appellant applied for the said post on 27th December, 2005. In March, 2006 interviews were conducted by Public Enterprises Selection Board (PESB for short). PESB shortlisted two candidates and made panel in which the appellant was placed at serial No.1 and one Mr.Neeraj Mishra was placed at serial No.2 in order of preference. LPA No. 168/2009 Page 1 of 7 4. In or around 26th March, 2006 in accordance with the procedure laid down the CVC issued vigilance clearance in favour of the appellant. According to the appellant, for the post of Director (Marketing) in the respondent No.2, the Department of Commerce, being the administrative Ministry, selected the name of the appellant and forwarded it to the final approval of the Appointments Committee of Cabinet (ACC for short). The appellant has further stated that his name was also endorsed by the Home Minister as the second Member of the ACC. However, according to the appellant the Cabinet Secretary Shri P.K.Chaturvedi, who was earlier MD of the respondent No.2 presented a complete distorted picture and raised a querry as to why the name of the appellant had been proposed by the Department of Commerce in view of some alleged cases of serious dimensions, which were at one point of time pending against the appellant. 5. The appellant has further stated that in or around 1994-95 the appellant was dragged into various departmental enquiries and two criminal cases investigated by the Central Bureau of Investigation (CBI for short) at the instance of Shri Chaturvedi, who happened to be the then MD of respondent No.2 The appellant has pointed out that in all the cases and the departmental enquiries the appellant was exonerated on merits. In fact, the appellant obtained two promotions, one to the rank of General Manager with retrospective effect i.e. with effect from 17th September, 1997 and thereafter to the post of Chief General Manager in which he is currently working. The appellant has also pointed out that as a LPA No. 168/2009 Page 2 of 7 sequel to the ongoing CBI investigations, departmental enquiries , the name of the appellant was placed in the “agreed list” as well as in the list of “officers with doubtful integrity”, which entries were deleted consequent to the exoneration of the appellant on merits of each of the said cases after completion of due process of law. The grievance of the appellant is that the file was kept pending for some time and ultimately the name of the second candidate Shri Neeraj Mishra was placed for consideration of ACC and finally even that name was dropped and the panel was scrapped and direction was given to take fresh process for filling up the vacancy for the post of Director (Marketing). 6. The appellant approached this Court by filing a writ petition which came to be dismissed vide order under appeal. The learned single Judge was of the view that it is within the domain of the ACC to adjust suitability of candidates and no mandamus can be issued in this respect to compel the ACC to exercise the discretion in a particular manner, or even to interfere in the exercise of such discretion unless and until the exercise of the discretion of ACC was mala fide or unreasonable or actuated by bias. In the opinion of the learned single Judge the decision of the ACC not the approve the appointment of the appellant did not suffer from any such infirmity so as to warrant interference. 7. Mr. Ashok Desai, learned senior counsel for the appellant, submitted that no valid reason or cause was shown for depriving the appellant his legitimate right of appointment as Director (Marketing) of respondent No. 2, when the appellant has been LPA No. 168/2009 Page 3 of 7 recommended by all the authorities and also by two members of the ACC. He submitted that when the ACC makes appointments and intends to differ from the recommendations of the PESB, the former must record reasons for so differing, even if those reasons need not be communicated to the officer concerned. According to him the file relating to those reasons is subject to the scrutiny by the Court, when that decision is challenged. In support his submission, he relied upon the decision of the Apex Court in Union of India & Ors. vs. N.P. Dhamania & Ors., 1995 Supp (1) SCC 1. In that case, the ACC chose to differ without assigning any reason. In fact, Union of India was unable to produce any material to show that any reasons had been assigned for differing from DPC. The Central Administrative Tribunal allowed the appeal and directed to grant promotion to the appellant therein. Though the grant of ‘deemed promotion’ by the Tribunal was held to be in excess of jurisdiction, the Court held that notwithstanding the fact that it was open to ACC, which alone was the appointing authority, to differ from the recommendations of the DPC, it must give reasons for so differing to ward off any attack of arbitrariness. The following observations of the Court are pertinent:- “19. Notwithstanding the fact that it is open to AAC which alone is the appointing authority and not the Minister concerned, as urged by the respondent to differ from the recommendations of the DPC, it must give reasons for so differing to ward off any attack of arbitrariness. Those reasons will have to be recorded in the file. It requires to be stated at this stage that we have perused the file in the instant case. We find no reasons have been recorded for differing from the recommendations of the DPC. That is why the tribunal also inter alia observes in the impugned judgment as under: LPA No. 168/2009 Page 4 of 7 “However, the counsel for the respondent felt helpless in the matter and he failed to provide us any inkling of what prevailed with the ACC in dropping the petitioner and four others out of the select panel of 59 officers.” 20. If the file had contained reasons something could be said in favour of the appellant. But, that is not the case here. Then the question would be whether the reasons recorded are required to be communicated to the officer concerned. Our answer is in the negative. There is no need to communicate those reasons. When challenged it is always open to the authority concerned to produce the necessary records before the Court. XXX XXX XXX 22. ACC may reconsider these cases within 3 months in the light of the observations at page 7,10 and above and if found suitable, may give promotion with effect from the date, their immediate junior officer was promoted with consequential benefits of seniority and salary etc.” 8. On behalf of the Union of India, it was contended that in a subsequent judgment in Union of India & Anr. vs. Samar Singh & Ors., (1996) 10 SCC 555, the Apex Court has taken a view that it is not necessary for the authority to give reasons for the non- selection of the officer. Learned counsel for the Union of India contended that Samar Singh’s case being later in point of time, is binding on this Court. We are unable to agree with the submission of the learned counsel. Facts in Samar Singh’s case were clearly different and the case is distinguishable. In that case the name of the officer was not included in the panel prepared by the Special Committee. Consequently the name of the officer was not considered by the ACC. The challenge was mainly to the exclusion of the name of the respondent by the Special Committee. The LPA No. 168/2009 Page 5 of 7 question of ACC differing from the Special Committee did not arise in that case. The Court held that merely because the minutes of the Committee do not contain the reason for non-selection of the respondent does not mean that there has been no proper consideration of the merits and suitability of the respondent and as a result the selection is vitiated. However, the situation in the present case is different. The PESB has included the name of the appellant in the panel at serial No.1 in order of preference. The CVC has given its clearance to the appellant’s name vide letter dated 26th March, 2006. In the departmental enquiries as well as CBI investigations the appellant was exonerated on merits. In fact, the appellant thereafter obtained two promotions, one to the rank of General Manager and then to rank of Chief General Manager, in which post he is currently working. The name of the appellant has been removed from the “agreed list” as well the list of officers with “doubtful integrity’, consequent to the exoneration of the appellant on merits on each of the said cases after due enquiries. We have called for the CRs of the appellant and it is seen that he had been assessed as “very good” for the years 2001-02 and 2002-03, as “excellent” for the years 2003-04 and as “outstanding” for the years 2004-05 and 2005-06. 9. In the present case the ACC chose to differ without assigning any reason. Learned counsel for the Union of India was unable to produce any material to show that reasons had been assigned for differing from PESB. We have also gone through the original files and we do not find any inkling as to what prevailed with the ACC in not selecting the appellant whose name was duly included in the LPA No. 168/2009 Page 6 of 7 panel by PESB and who seems to have an impeccable record. No reasons whatsoever are indicated in the files. 10. In the circumstances, we allow the appeal and set aside the impugned order dated 9th January, 2009. We direct that the appointing authority shall consult PESB once again by making a reference to it indicating the reasons for making a departure from the panel recommended by the PESB and also forward the material on which it has reached the conclusion and obtained views of PESB before taking a final decision in the matter. In case after consultation with the PESB, in the manner indicated above, the name of the appellant is restored to its original position, as recommended by PESB, the case of the appellant for promotion to the post of Director (Marketing) shall be considered on merits and necessary orders will be passed within a period of two months from today. It has already been directed by this Court that any appointment to the post of Director (Marketing) will be subject to the outcome of the present proceedings. 11. With the above directions, the appeal along with pending applications stand disposed of. CHIEF JUSTICE NEERAJ KISHAN KAUL, J. MAY 18, 2009 Sb/”v” LPA No. 168/2009 Page 7 of 7