IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Writ Petition No. 1662 of 2007. Decided on: 19.5.2008. _______________________________________________________ Yog Raj … Petitioner. Versus The New India Assurance Compay Ltd. and another. … Respondents. _____________________________________________________________ Coram: Hon’bl Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Bhuvnesh Sharma, Advocate. For Respondents : Mr. B.M. Chauhan, Advocate. __________________________________________________________________ Rajiv Sharma, Judge. The brief facts necessary for the adjudication of this petition are that the petitioner was appointed as Assistant Clerk in the respondent- Company on 30.12.1985. He was promoted to the post of Senior Assistant on 28.6.1991. He was further promoted to the post of Administrative Officer on 14.3.2000. The post of Administrative Officer is in the feeder category for promotion to the post of Assistant Manager (Scale-II). The respondent-Company had undertaken an exercise for effecting promotions from Scale-I to Scale-II for the year 2007-2008. The petitioner was also considered for promotion to the post i.e. Scale-II from Scale-I and was not found suitable by the duly constituted Departmental Promotion Committee. He has assailed his non-promotion by the Company to the post of Assistant Manager. Mr. Bhuvnesh Sharma, Advocate had strenuously argued that the case of his client has not been considered strictly as per the “Promotion Policy for Officers”. He then contended that the work record of his client 1 Whether reporters of the local papers may be allowed to see the judgment?No. 2 has not been taken into consideration by the Departmental Promotion Committee. Shri B.M. Chauhan, Advocate had argued that the case of the petitioner had been considered strictly as per “Promotion Policy for Officers- 2006”. I have heard the learned counsel for the parties and have perused the record carefully as produced by Shri B.M. Chauhan during the course of the hearing of the petition. The promotion from Scale-I to Scale-II is regulated under the “Promotion Policy for Officers-2006”. Para 11 of the Policy lays down the scheme of weightage to various parameters in the criteria for promotion up to Scale-V. It is evident from para 11.1 that 30 marks have been carved out for written test, 5 marks for Insurance Qualification, 30 marks for Work Record and 35 marks for seniority for effecting promotion from Scale-I to Scale-II. Para 11.2 lays down the procedure for holding and allotment of marks on written test. Para 11.3 lays down the criteria for determining insurance qualifications. The work record is to be assessed as per the norms laid down in para 11.4. The valuation of the seniority is to be done as per para 11.5 and para 11.5.1. For promotion from Scale-I to Scale-II, CMD, two GMs (including the one in-charge of Personnel) and one SC/ST representative constitutes Departmental Promotion Committee. It is evident from the comparative chart prepared by the respondent-Company that the petitioner had secured total 59.15 marks. He has been assigned 6 marks for the service rendered in the cadre. He has secured 16.50 marks in the written test. He has been assigned 2 marks for insurance qualification. He has been assigned 25.17 marks for work record, i.e. (a) 8.51 marks for traits, (b) 10.83 marks for performance and (c) 5.83 marks for growth potential. He has been assigned 15.48 marks for seniority. The cut off marks for promotion are 66.74. The petitioner could not point out any discrepancy in the marks allotted to the petitioner under various heads. The Court has also perused the record to see whether the 3 Departmental Examination Committee was constituted as per the Rules or not. The same had been constituted strictly as per the promotion policy. Howeve, Mr. Bhuvnesh Sharma had further argued that his client apprehends that his A.C.Rs. had not been correctly recorded in accordance with law since according to him, the Branch Manager was inimical towards him. There is no substance in this submission. The petitioner has not made the Branch Manager a party-respondent in this case. It is settled law that it is easier to raise the plea of mala fide but very difficult to prove the same. If the petitioner intended to make any accusation of mala fides, legal or factual, he should have arrayed the Branch Manager as a party. The instances given by the petitioner in the petition of the displeasure shown by the Branch Manager are trivial in nature. The petitioner has been assigned the marks as per his performance in the written test as well as on the basis of the other criteria provided in the policy under various heads. The petitioner had failed to substantiate the plea of mala fides against the Branch Manager. Their Lordships of the Supreme Court have held in M.V. Thimmaiah and others Vs. Union Public Service Commission and others (2008) 2 SCC-119 that the Courts cannot sit as an Appellate Authority to examine recommendations of the Selection Committee, like Court of Appeal. Their Lordships have further held that the allegation of mala fide is very easy to level and it is very difficult to substantiate it, especially in the matter of selection or whoever is involved in the decision making process. Their Lordships have held as under: “So far as the allegation of mala fide against Shri B.S.Patil is concerned, he was not impleaded as a party. Therefore, the allegation of mala fide could not be entertained by the Tribunal. As such, the allegation of mala fide against Shri B.S.Patil could not be taken into consideration and rightly so, by the High Court as well as by the Tribunal. The allegation of mala fide is very easy to be levelled and it is very difficult to substantiate it, especially in 4 the matter of selection or whoever is involved in the decision making process. People are prone to make such allegation but the Courts owe a duty to scrutinize the allegation meticulously because the person who is making the allegation of animous sometimes bona fidely or sometimes mala fidely due to his non-selection. He has a vested interest. Therefore, unless the allegations are substantiated beyond doubt, till that time the Court cannot draw its conclusion. Therefore, we reject the allegation of mala fide. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory Rules. The Courts cannot sit as an appellate authority to examine the recommendations of the Selection Committee like the Court of appeal. This discretion has been given to the Selection Committee only and Courts rarely sit in court of appeal to examine the selection of the candidates nor is the business of the Court to examine each candidate and record its opinion. In this connection, learned senior counsel for the appellants has taken us through various following decisions of this Court.” In view of the observations made hereinabove, there is no merit in this writ petition and the same is dismissed. No costs. (Rajiv Sharma) Judge. 19th May, 2008. (cr)