IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-07-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. CHANDRU WRIT PETITION NO.808 OF 2001 AND WMP.NO.1084 OF 2001 1. Council of Scientific and Industrial Research (CSIR), rep. by its Director General, Rafi Marg, New Delhi 110 001. 2. Central Electrochemical Research Institute (CECRI), rep. by its Director, Karaikudi 630 006. .. Petitioners Vs. 1. Dr.M. Vijayan, Scientist, Central Electrochemical Research Institute (CECRI), Karaikudi 630 006. 2. The Chairman, Assessment Committee for Merit and Normal Assessment Scheme (1989-94), Karaikudi. 3. Prof.G.V. Subba Rao, professor, Department of Physics, National University of Singapore, 10,Kent Ridge Crescent Road, Singapore. 4. The Registrar, Central Administrative Tribunal, Chennai Bench. .. Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the records pertaining to the orders passed by the 4th respondent dated 22.9.2000 in O.A.No.395 of 1998 and quash the same. For Petitioners : Mrs.C.N.G. Niraimathi For Respondent-1 : Mrs.D. Nagasaila - - - J U D G M E N T P.K. MISRA, J The present writ petition is filed by the Council of Scientific and Industrial Research ( in short "CSIR") and the Central Electrochemical Research Institute (in short "CECRI") against the order of the Central Administrative Tribunal, Madras Bench (in short "Tribunal"), dated 22.9.2000 in O.A.No.395 of 1998, wherein the Tribunal, while allowing the Original Application filed by the present Respondent No.1, quashed the order dated 8.5.1997 and directed constitution of a fresh Selection Committee to assess the suitability of the applicant for promotion to Group IV (2). 2. The facts in brief, which were projected before the Tribunal and relevant for the decision in the present writ petition, are as follows :- 2.1 For convenience, the parties are described in the manner in which they had been arrayed in O.A.No.395 of 1998 before the Tribunal. 2.2 The applicant was working as a Scientist under CECRI. The question relates to promotion from Group IV (1) to Group IV(2). An officer becomes eligible to such post after completion of five years of service in the grade of Scientist-B/Grade IV(1). The persons eligible to be considered for promotion are to be assessed on the basis of the marks obtained in the Annual Performance Appraisal Report (APAR) and assessed by Peer Review Committee and the marks obtained at the interview. If the total marks secured by the individual touches the threshold fixed for promotion, his case is recommended for promotion. For the purpose of holding an interview during the relevant year, a Selection Committee was constituted of which, apart from Opposite Party No.3, who was the Chairman, there were three other members including Opposite Party No.4, who was the Director of the CECRI. Incidentally, such Opposite Party No.4 in his capacity as the Director was also the authority competent to approve the appraisal made by such assessment committee. Out of total 100 marks, 30 marks was to be awarded as per the Annual Performance https://hcservices.ecourts.gov.in/hcservices/ Appraisal Report (APAR), 30 marks was to be awarded by the Peer Review Committee and 40% marks to be awarded at the time of interview. It has been found by the Tribunal and not disputed before us that the applicant had secured 22.59 out of 30 marks relating to APAR, 24 out of 30 marks as per the referees comments and 10 out of 40 marks at the interview. For a general candidate to be eligible, one was required to score 60% marks. The applicant, thus, fell short by 3.31 marks. The applicant challenged his non-selection inter alia on the ground that earmarking 40 marks in the interview is arbitrary and also on the ground that low marks had been arbitrarily awarded in the interview to the applicant because of the presence of Opposite Party No.4, who had grudge against the applicant as the applicant and other office bearers of the Association had been repeatedly raising several allegations against such Opposite Party No.4. 2.3 Even though the Tribunal rejected the contention of the applicant that earmarking 40% of the marks for the interview was arbitrary and also declined to give any categorical finding regarding malice on the Opposite Party No.4, it has set aside the selection on the ground that working-sheet for awarding marks had not been produced in spite of the direction and Opposite Party No.4 should not have been a member of the Selection Committee, particularly in the background of several allegations made against him. The Tribunal also observed that the Selection Committee should have maintained the working-sheets to indicate the basis for awarding of marks and in the absence of any records, awarding of marks appears to be whimsical. The Tribunal also incidentally observed that in the process of selection, the element of bias and prejudice had crept in and directed for constitution of fresh Selection Commission. The decision of the Tribunal directing constitution of a fresh Selection Committee is being questioned by the CISR and CECRI in the present writ petition. 3. Learned counsel appearing for the petitioners has raised the contention that the applicant himself having not objected to the presence of Opposite Party No.4 (The Director of CECRI), the Tribunal could not have permitted to challenge non-selection on the ground that such Opposite Party No.4 was a member of the Selection Committee. 4. If the presence of Opposite Party No.4 as a member of the Selection Committee would be the only ground on which the Tribunal could have set aside the process of selection, we would have been inclined to accept the contention of the petitioner. In the present case, we find that apart from the above the Tribunal has also commented upon the fact that the records relating to the process of awarding marks at the interview were not produced before the Tribunal on the ground that no such records have been maintained. The https://hcservices.ecourts.gov.in/hcservices/ Tribunal has commented that element of arbitrariness had crept in while awarding marks at the interview. 5. Even though the Tribunal does not appear to have given any categorical finding regarding malice on the Opposite Party No.4, there are certain conclusions of the Tribunal, which clearly indicate that the Tribunal was inclined to accept such submission. The Tribunal has referred to the fact that the applicant and many other members of the staff had made several allegations against Opposite Party No.4, who was the Director of CECRI at the relevant time. In this context, the Tribunal concluded : "9. ... The Chairman of the selection committee was Mr.R. Narayan and below that the approval of the entire proceedings was made by the very same Director Mr.P. Subba Rao, who also functioned as one of the Members of the Assessment Committee during the interview. We find that this procedure does not conform to the normal rules of selection. We are astonished to find that a Member of the Assessment Committee later on assumed the role of approving authority, though in between the Chairman of the Committee happened to be a different person. In this connection we would like to observe that there are various judicial pronouncements as also procedural rules wherein it is stated that when certain irregularities are alleged against a particular authority and one apprehends malice by the said authority, then he becomes functus officio. Under such circumstances the said authority should not associate himself as a member of the assessment committee or act as the approving authority and under such circumstances ought to have appointed some ad hoc authority for ensuring justice and fairplay. But in the instant case totally the reverse had taken the place and on this ground alone the proceedings of the assessment committee are liable to be set in so far as the applicant is concerned." It was further observed :- "13. Though it has been urged that the whole issue has come up now before the Tribunal because of the alleged indiscreet conduct of the then Director and the so called petitions written against him by the applicant and others, we for a moment do not want to examine those aspects at this distant point of time. It is between the then Director, Scientists of the Institute and the DG of CSIR who is the head of the organisation. https://hcservices.ecourts.gov.in/hcservices/ 14. We further find that even though the applicant has attributed individual malice against the then Director in his individual capacity and has arrayed him as a party respondent No.4 in the OA, the said Mr.G.T. Subba Rao has not chosen to file an individual reply controverting the averments made against him in the OA for reasons best known to him and we do not want to go into this aspect as the said person had already retired from service. In other words whether the then Director was prejudiced against the applicant is not the issue before us. The issue for our prime consideration is whether the assessment was done in a fair and equitable manner and in a manner known to law or not." 6. From the aforesaid discussion, it is apparent that though the Tribunal had not given a categorical finding regarding individual malice and prejudice of Opposite Party No.4, yet it had apparently accepted the contention that there was some allegation of bias or prejudice against the applicant in the mind of Opposite Party No.4. In the above background, the observation of the Tribunal that Opposite Party No.4 in his capacity as Director being the approving authority of the proceedings of the committee, should have nominated his delegate instead of being becoming a member of such Committee. 7. It is of course true that the plea of mala fide is very often taken without sufficient materials in support of such a plea. In the present case, several allegations had been made against Opposite Party No.4, who had been impleaded in his individual capacity, yet notwithstanding such categorical assertion, such Opposite Party No.4 had never chosen to file any affidavit rebutting the specific allegation of mala fide made against him. It is of course true that at the time of filing of the O.A. Opposite Party No.4 is ceased to be the Director of the Opposite Party No.2 and was serving in a University outside the country, but inspite of that he could have entered appearance through the lawyer and filed an affidavit, even without requirement of coming back from the foreign country. 8. The Tribunal has also made observation that awarding of marks at the interview appears to be arbitrary. The fact that the applicant had secured 22.59 out of 30 marks in APAR (about 75%), 24 out of 30 marks in the Review made by the Peer Review Committee (more than 75%), and yet he secured only 10 out of 40 marks (less than 25%) at the time of interview, tells its own tale. The fact that the applicant had been subsequently given such promotion after the departure of Opposite Party No.4 has also certain bearing on the above aspect. https://hcservices.ecourts.gov.in/hcservices/ 9. It is of course true that ordinarily the Administrative Tribunal, or the High Court for that matter, is loath to interfere in the process of selection. However, when the materials clearly indicate that all were not well in the process of selection, the court of equity should not hesitate in interfering with such matter. In the present case, the Tribunal on consideration of certain relevant aspects, in its discretion has chosen to interfere with the process of selection and while sitting in judgment over such decision in a proceedings under Article 226 of the Constitution, we are not inclined to take a different view in the matter, particularly in the peculiar facts and background of the present case. 10. Since other serious allegations have been made against Opposite Party No.4 at the behest of the applicant and some other office bearers of the Association , in fitness of things, such Opposite Party No.4 could have desisted from becoming a member of the Selection Committee. In this connection, one may refer to the decisions of the Supreme Court reported in 1993 Supp (4) SCC 4 (V. MAHADEVAN v. D.C. AGGARWAL), wherein it was observed : "3. ... From the records produced by the learned Additional Solicitor General we find that the committee which interviewed comprised two of the persons against whom the respondent had filed contempt petition in the High Court. . . . This, in our opinion, was neither proper nor fair. Those officers who are occupying very high position in the bank in all propriety should have withdrawn from the committee constituted for this purpose. We may not be understood as imputing any bias to them. But in our opinion the principle of fairness required that they should not have sat on the Board. . . ." 11. Similar observations are also made in 1995 Supp(1) SCC 21(TILAK CHAND MAGATRAM OBHAN v. KAMALA PRASAD SHUKLA). In the said case, the Principal of a school, who was a member of the Enquiry Committee, was biased against the delinquent and he had also issued notice of defamation against the delinquent. In such circumstances, it was held that the presence of the Principal in the Committee had vitiated the atmosphere for a free and fair inquiry. It was also observed that the entire inquiry was bad and the fact that there was an appeal, did not cure the defect. 12. The observation made by the Supreme Court in (2000) 8 SCC 395 (BADRINATH v. GOVERNMENT OF TAMIL NADU & OTHERS) also buttress the above conclusion. 13. We are conscious of the fact that in the Selection Committee, apart from the aforesaid Opposite Party No.4, there are https://hcservices.ecourts.gov.in/hcservices/ three other members and, therefore, it cannot be assumed that bias on the part of Opposite Party No.4 could not have been in normal circumstances permeated to others. However, since Opposite Party No.4 in his capacity as the Director and also the approving authority in respect of the report of such Selection Committee, it can be well concluded, as has been done by the Tribunal, that his presence made all the reference. In this context, the observation made by the Supreme Court in (1986) 4 SCC 537 (INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA v. L.K. RATNA) assumes importance. 14. For the aforesaid reasons, we are unable to persuade ourselves to take a different view in the matter. The writ petition is accordingly dismissed. Consequently, the connected miscellaneous petition is closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. dpk To The Registrar, Central Administrative Tribunal, Chennai Bench. + 1 CC To Mrs.D. Nagasaila, Advocate SR NO.39166 JUDGMENT IN WP.808/2001 KJ {CO} TP/5.8.08 https://hcservices.ecourts.gov.in/hcservices/