IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY THE NINETEENTH DAY OF APRIL TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE G. BHAVANI PRASAD W.A.No.1028 of 2004 Between: R.P. Singh .. Appellant AND Bharat Heavy Electricals Limited, represented by its Chairman & Managing Director and 2 others .. Respondents JUDGMENT: (per G. Bhavani Prasad, J) The writ appeal is directed against the order dated 15-03- 2004 in W.P.No.24090 of 2001. The writ petition is filed for declaring the action of the Departmental Promotion Committee of Bharat Heavy Electricals Limited in not recommending the case of the writ petitioner for promotion to the post of Executive Director, and the consequential action by the company in not promoting the writ petitioner as illegal and unconstitutional and for a direction to the respondents to promote the writ petitioner as Executive Director of the 1st respondent company with retrospective effect from July, 2000. The writ petitioner contended that he is an Electrical Engineering Graduate of 1965 and joined the 1st respondent company at Bhopal as a Graduate Engineer Trainee in 1968. He was promoted as Deputy General Manager in 1988 and he was given “SHRAMVIR” award by the Government of India for devising a new and economical technique for motor testing. In June, 1989, the writ petitioner acted against the then Executive Director, Sri R.K. Saraf in the matter of allotment of plots to members of Alkapuri Housing Society. The writ petitioner was the President of the Executive’s Association and in an enquiry ordered by the then Chief Minister of Madhya Pradesh, Sri Saraf and others were found guilty and the allotments made by them were cancelled. Since then, the Annual Confidential Reports between 1988 and 1994 were down graded by Sri Saraf and his close associates, but no adverse remarks were ever communicated. As the writ petitioner was not promoted to next higher grades, he filed W.P.No.342 of 1993 before the High Court of Madhya Pradesh, which gave directions for considering the writ petitioner for promotion to higher grades keeping in view the outstanding merit and exemplary performance of the writ petitioner. L.P.A.No.88 of 1996 was dismissed by a Division Bench of that High Court and when the orders were not implemented, the writ petitioner filed C.C.No.139 of 1997. The writ petitioner was directed to be treated as outstanding and he was promoted to the post of General Manager with retrospective effect from 1994. He was transferred to Hyderabad in 1998 and since then he was instrumental in taking up various actions for improvement of the township. He effected a saving of Rs2.35 crores in NALA Text. The performance exceeded the budgeted target, which no other division could do. The writ petitioner became eligible after completion of four years of service as General Manager to the post of Executive Director and the company convened a Departmental Promotion Committee in July 2000 for considering and scrutinizing the cases of 61 persons. The writ petitioner appeared before the committee for the interview and the writ petitioner being the senior most General Manager with performance with distinction should have been considered objectively and fairly. But, he appeared to have been placed lower than his contemporaries and juniors. He made a representation dated 27-12-2000 for which there was no reply with details. The writ petitioner was not even given independent charge as a General Manager and in W.P.No.21675 of 2001, he sought for directions to dispose of his representation dated 27-12-2000. In the counter affidavit, it was stated that the said representation was disposed of on 05-01-2001 and that the writ petitioner was not selected. Hence, the writ petitioner, who is eminently eligible and qualified for promotion on merit-cum-seniority, filed the present writ petition and also sought for an interim direction to promote him as an Executive Director pending the writ petition. The counter affidavit of the respondents stated that the Selection Committee/Departmental Promotion Committee is not a permanent body to be impleaded as the 3rd respondent. Executive Director is a selection post and the Selection Committee considered 61 eligible General Managers including the writ petitioner and prepared a panel of 61 selected candidates after assessing their merit. The Board of Directors noted the panel in its 315th meeting held on 28-07-2000. The writ petitioner was not selected and included in the selection list and to his representation dated 27-12-2000, a reply was given on 25-01-2001 stating that the Committee did not recommend him for promotion. The writ petitioner submitted another representation on 5-2-2001 requesting to be informed of the reasons for not recommending his case, which request is unjustified. A detailed counter affidavit was filed in W.P.No.21675 of 2001 and Executive Director post is treated as all Company Cadre. The writ petitioner has no legal or absolute right for the said post for which the relevant factors are performance, suitability, potential, company’s requirement, length of service etc. The writ petitioner had in fact failed in W.P.No.4029 of 1998 and L.P.A.No.389 of 1998 against his transfer to Hyderabad and the claims of the writ petitioner about his performance are self-serving. As the writ petitioner was not selected duly considering the selection criteria, the writ petition is liable to be dismissed. The writ petition was disposed of by the impugned order on merits in which the learned Judge observed that while there was no dispute that the writ petitioner is qualified and eligible to be considered for promotion as an Executive Director, his suitability on evaluation of his merit is in question. The Court perused the minutes of the meeting of the Selection Committee held on 5th, 6th, and 7th July 2000 and the 8 members of the Selection Committee were found to have considered the cases of 61 eligible General Managers and to have shortlisted 12 candidates of whom the first eight in the order of ranking accorded by the committee were identified for appointment. The learned Judge noted that no reasons were recorded for selection, but when no allegations of malice in fact were made by the writ petitioner against the members of the Selection Committee, the Court will not sit in appeal over the decisions of the duly constituted selection committee. The actual decision is normally left to the discretion of the authority duly constituted unless the decision is vitiated by infirmities such as eschewing of relevant considerations and taking into account impermissible factors. The burden of proof was considered to be on the writ petitioner and the learned Judge made a detailed reference to the constitutional provisions and precedents on the aspect and concluded that no reasons are required to be recorded while making selections to posts in public service which are based on merit and the jurisdiction of the court in judicial review does not extend to appellate scrutiny of the records of all competing candidates to reassess their relative merit for promotion. The learned Judge declined to make an assessment of the petitioner’s achievements and commendations to scrutinize his superior claims to promotion as Executive Director as the Court cannot substitute its view to that of the selection committee. While dismissing the writ petition without costs, the learned Judge observed that recording of reasons by the Selection Committee though not mandatory is certainly a commendable administrative practice that enures fairness, transparency and credibility. The writ petitioner challenges the said order in this writ appeal contending that promotions are based on the assessment of the suitability of the individual officer concerned, but not on comparative assessment of the merit of the competing candidates. Extraneous reasons and considerations weighed in the writ petitioner not being given due weight for the high assessments of his performance, discharge of duties and conduct. Legal malice played a role and absence of recording of reasons would be violating the procedural fairness. The deviation from the Personnel Manual is reason enough to set at naught the faulty exercise. The extraneous factors influencing the selection are a vitiating factor, the burden of proof of showing which the writ petitioner discharged, and hence, the writ petitioner desired the impugned order to be reversed. Heard the learned counsel for both sides. The point for consideration is whether the failure of the Selection Committee to recommend the writ petitioner to the post of Executive Director is liable for interference in exercise of the extraordinary original jurisdiction of this Court? It is true that in W.P.No.342 of 1993, a learned Judge of the Madhya Pradesh High Court appeared to have found that the case of the writ petitioner herein for promotion to higher grades was not fairly and objectively considered by the Departmental Promotion Committee then on account of the prejudice and bias against him in spite of his outstanding merit and exemplary performance. A special Departmental Promotion Committee was directed to be convened to consider the case of the writ petitioner herein accordingly. In Contempt Case No.139 of 1997, the Court found force in the submissions on behalf of the writ petitioner herein that a vindictive attitude was adopted by the contemnors against him because of the writ petitioner highlighting the illegalities of Sri Saraf as President of the Housing Society. Thus, though the company failed in L.P.A.No.88 of 1996 against W.P.No.342 of 1993, the implementation of the directions had to await the filing of a contempt case. It is also seen from the material papers filed by the writ petitioner that he received a “SHRAM VIR NATIONAL AWARD” on 28-02-1983 and had been a recipient of other commendations and awards. While the achievements and performance of the writ petitioner as presented by the various material papers filed by him may not be factually in dispute, the same is no guiding material concerning the achievements, performance and record of the remaining 60 candidates under consideration of the selection committee herein. While admittedly the post of Executive Director is a selection post, the selection will have to be necessarily based on the assessment of performance, conduct and all other relevant factors of all the candidates under consideration of the Selection Committee. The Personnel Manual Volume-1 issued by the Corporate Personnel Department of BHEL shows that the criteria adopted by the Departmental Promotion Committee for considering promotions broadly include factors such as qualification, performance, general suitability and the potential for higher responsibility. It is also stated that an attempt would always be made to explain to an employee the reasons for his non-selection so that the employee has an opportunity to make up his deficiencies in the relevant area and the employee has an opportunity to make a representation to the competent authority through proper channel if he still has a grievance. But, it is seen from the Personnel Manual that these principles and guidelines will regulate promotions up to and including E5. However, Senior Executive Cadre (E6 and above) is treated as all Company Cadre regulated by a company vide basis carried out on the recommendations of the special committee of Executive Directors/Heads of Units. Therefore, this principle and guideline in the Personnel Manual to explain to an employee the reasons for his non-selection has no application to the Senior Executive cadre by the very specifications stated in the Manual. Though there are reasons for suspicion for the writ petitioner about any extraneous reasons or bias acting against him for his non-selection, none of the members of the Selection Committee in question were alleged to have any malice in fact against the writ petitioner for any reason including his controversies with Sri Saraf or his earlier litigation with the company. While the counter affidavit states that all the relevant criteria were taken into account in the process of selection that the actions of the 1st respondent were upheld earlier in judicial proceedings after the litigation about the earlier promotion is evident from the reference in the counter affidavit to the cases against the transfer of the writ petitioner to Hyderabad in which the writ petitioner failed. The counter affidavit also stated that in fact the writ petitioner was proposed to be considered to the post of Director of the Company on three occasions, but the Public Enterprises Selection Board did not select him on two occasions. The writ petitioner was claimed to have declined the Managing Directorship of a joint venture company of India and Libya, which events may not indicate the company acting with any vindictive attitude against the writ petitioner. The learned Judge in the impugned judgment has considered the rival contentions in depth and with reference to the constitutional provisions and the principles laid down by the Apex Court, has concluded that the mere absence of recording of reasons by the selection committee does not vitiate the non-inclusion of the writ petitioner in the absence of any relevant reasons. The perception of the writ petitioner about his own performance or his beliefs about the selecting committee being motivated by his earlier litigation cannot be valid and strong grounds for interference unless the decision making process has been indicated by the material on record to be vitiated by ignoring the extraordinary performance of the writ petitioner or by considering his pursuit of the litigation with the company earlier. The burden of proof in this regard cannot be considered to have been discharged by the writ petitioner and as the Courts cannot in judicial review reassess the merit of the competing candidates for selection, the positive directions sought for by the writ petitioner could not have been granted and the impugned order does not suffer from any infirmity requiring interference in appeal. The mere commendability of any administrative practice of recording reasons by the Selection Committee confers no legally enforceable right on the writ petitioner and the writ appeal has to fail. In the result, the writ appeal is dismissed without costs. _________________ B. PRAKASHRAO, J ____________________ G. BHAVANI PRASAD, J Date: 19-04-2011 Ksn