Case: Union of India Vs. Chothia (H.P.) and Others Etc

records of all officers of State Forest Servicer included in the list;(b) the records of all other eligible officers of the State Forest Service who are not adjudged suitable for inclusion in the list, together with the reasons as recorded by the Board for their non-inclusion in the list" (Emphasis ours)A perusal of Regulation 5 manifestly shows that the provision requires three essential conditions to be complied with:-(i) that the Board shall prepare in order of preference a list of officers of the State Forest Service in accordance with Regulation 4;(ii) that the Board must adjudge persons whom it thinks suitable for the appointment to the posts;(iii) that the Board shall send the records of eligible officers of the State who are not adjudged as suitable together with reasons recorded by the Board.The words "shall then be referred to the Commission for advice, by the Central Government alongwith" appear to be of a mandatory character and govern not only cl. (a) but all the other clauses viz. (b) and (c). Thus, a plain interpretation of regulation 5 would show that the requirements mentioned in cls. (a), (b) and (c) must be complied with before the recommendation is sent to the Commission. Cl. (b) clearly states that where eligible officers of the State Forest Service are not found suitable, reasons must be given by the Board for their non-inclusion in the select list. This provision, in our opinion is in public interest and has been made with a view to avoid arbitrary or capricious exercise of discretion by the Board, and also to prevent any hostile discrimination. The word adjudge is a very strong term and indicates that the Board must be satisfied that a person is not suitable and the requirement for giving reasons, has been enjoined for the purpose of proving that the Board was not only satisfied but has given grounds of its satisfaction so as to exclude possibility of any oblique or extraneous consideration. In these circumstances, therefore, we are unable to agree with the counsel for the appellant that the requirement of giving reasons as contained in Regulation 5(2)(b) is merely an idle formality and it is a substantial compliance with the said clause if the Board peruses the confidential rolls of officers and forwards the record to the Commission. Another purpose served by the provision is that the Commission would be in a position to know the views of the Selection Board and the reasons given by it for excluding a particular candidate so that it may verify the correctness of the reasons given by the Board with the record forwarded by the Board. In these circumstances we are satisfied that the provisions for giving reasons by Regulation 5 (2) (b) are mandatory and must be complied with. It is not disputed in the present case that the Board had not complied with this part of the provision of Regulation 5 and this was sufficient to vitiate the selection made by the Board. Mr. Bhatt, relied on an unreported decision of the Kerala High Court where, in a very summary fashion, the said High Court has held that there was no requirement in the Regulation that reasons should be given. In this connection, the High Court of Kerala observed as follows:-"It is to be observed that there is no such requirement in the Rules with which we are concerned in the instant case. Being so, it would be inappropriate to import any requirement of recording of reasons-for selection in this case." (Vide K. G. Vasudevan vs. State of Kerala &Ors. 0 P 2910/ 72 dt. 1-10-75)5. The High Court does not appear to have applied its mind to the language used in S. 5 (2) (b) of the Regulation, nor has it considered the avowed purpose of this provision which is undoubtedly in public interest. In these circumstances, therefore, we find ourself unable to agree with the view taken by the Kerala High Court on this point and we overrule the same.6. Lastly, Mr. Bhatt submitted that in view of the reply affidavit filed by Mr. Bhardwaj, Deputy Secretary to the Government of India, it would appear that the reasons were given by the Board which were that the service record of the respondent did not justify the inclusion of his name in the select list. In the first place, the affidavit appears to have been given by a person who was not a member of the Selection Board and as the recommendation was by a non-speaking order lie would not at all be conversant with the manner in which the recommendation was made ignoring the Respondent No. 1. No r had he any knowledge of the way in which the mind of the Board was working at that time. The deponent, therefore, was not at all competent to certify as to what was the reason given by the Board as required by Regulation 5 (2) (b) nor could the affidavit supply an omission made by the Selection Board in not complying with the mandate contained in Regulation 5 (2) (b). Secondly, the affidavit is obtuse because according to the Deputy Secretary, there was no obligation placed on the Selection Board to give reasons for the supersession of the said Forest Service Officers. This view as we have pointed out, is absolutely incorrect and is not borne out by the language of the provision of Regulation 5. Apart from this, the High Court has pointed out in its judgment at page 31 of the brief that the Court bad given an opportunity to the appellant to produce the records before it so as to find out if the confidential records of the Respondent No. I did not justify the selection. The appellant did not choose to avail of the opportunity given to it by the High Court which clearly indicates that the position was somewhat obscure.For these reasons, we find ourself in complete agreement with the judgment of the High Court and endorse the same.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The High Court does not appear to have applied its mind to the language used in S. 5 (2) (b) of the Regulation, nor has it considered the avowed purpose of this provision which is undoubtedly in public interest. In these circumstances, therefore, we find ourself unable to agree with the view taken by the Kerala High Court on this point and we overrule thethe first place, the affidavit appears to have been given by a person who was not a member of the Selection Board and as the recommendation was by a non-speaking order lie would not at all be conversant with the manner in which the recommendation was made ignoring the Respondent No. 1. No r had he any knowledge of the way in which the mind of the Board was working at that time. The deponent, therefore, was not at all competent to certify as to what was the reason given by the Board as required by Regulation 5 (2) (b) nor could the affidavit supply an omission made by the Selection Board in not complying with the mandate contained in Regulation 5 (2) (b). Secondly, the affidavit is obtuse because according to the Deputy Secretary, there was no obligation placed on the Selection Board to give reasons for the supersession of the said Forest Service Officers. This view as we have pointed out, is absolutely incorrect and is not borne out by the language of the provision of Regulation 5. Apart from this, the High Court has pointed out in its judgment at page 31 of the brief that the Court bad given an opportunity to the appellant to produce the records before it so as to find out if the confidential records of the Respondent No. I did not justify the selection. The appellant did not choose to avail of the opportunity given to it by the High Court which clearly indicates that the position was somewhat obscure.For these reasons, we find ourself in complete agreement with the judgment of the High Court and endorse the same.