UNION OF INDIA & ANR.versusBHASKARENDU DATTA MAJUMDAR

                 [2010] 10 S.C.R. 543


                 UNION OF INDIA & ANR.                         A
                             v.
           BHASKARENDU DATTA MAJUMDAR
             (Civil Appeal No. 7116 of 2010)
                    AUGUST 27 2010
                                                               B
    [HARJIT SINGH BEDI AND J.M. PANCHAL, JJ.]

     Service Law - Appointment/Selection - Selection of the
candidate by Selection Board - Appointments Committee not
granting approval to the selection - Writ petition - allowed by C
Single Judge of High Court - Writ appeal allowed holding that
order of Appointments Committee was unreasoned - Plea of
the candidate that the rejection of selection was biased and
based on certain enquiries and investigations against him in
the past - On appeal, held: The rejection of selection of the D
candidate was not correct as he was exonerated in the
inquiries/investigations and his annual report for the relevant
years was good - Appointments Committee also failed to
show reasons for rejecting the selection of the candidate.
                                                                E
     The Respondent was shortlisted by Public
Enterprises Selection Board (PSEB), and placed at serial
No-1 for selection on the post of Director (Marketing) with
the appellant-Corporation. Clearance was issued by the
Central Vigilance Commission and the Ministry
concerned forwarded his name to the Appointments F
Committee of the Cabinet (ACC) for final approval. But the
Cabinet Secretary who was earlier the Managing Director
of the appellant-Corporation, scuttled the appointment of
the respondent, taking note of some serious allegations
leveled against him at one point of time.                       G

     The respondent challenged the order, by filing writ
petition, which was dismissed by the Single Judge of the

                            543                                H
    544      SUPREME COURT REPORTS           [2010] 10 S.C.R.


A High Court. The LPA was allowed by Division Bench of
  the High Court holding that ACC had given no reasons
  for its order. Therefore, the instant appeal was filed.

          Dismissing the appeal, the Court

B      HELD: It has not been denied that after the various
  enquiries and investigations had been completed and the
  respondent was exonerated on merits, he obtained two
  promotions, and the entry with regard to his doubtful
  integrity which had been made on account of the
C pending matters, had also been removed. The Division
  Bench of the High Court had also called for the
  confidential record of the respondent and observed that
  he had been assessed as "very good" for the years 2001-
  02 and 2002-03, "Excellent" for the year 2003-04 and
D "Outstanding" for the years 2004-05 and 2005-06. These
  were the crucial years in so far as the respondent's case
  for promotion to Director (Marketing) was concerned. The
  Division Bench also observed, that the Union of India had
  not been able to show any record indicating the reasons
E as to why the ACC had differed with the opinion of the
  PESB leading to the only inference that no reasons
  whatsoever had been recorded. Therefore, there is no
  merit in the instant appeal. [Para 8) [549-C-F)

     Union of India and Ors. vs. N.P.Dhamania and Ors. 1995
F Suppl. (1) sec 1 - relied on.

         Union of India and Anr. vs. Samar Singh and Ors. 1996
    (10) sec 555 - held inapplicable.

G        Chief Executive Officer vs. Biswa Bhusan Nandi 2008
    (10) SCC 161; Union of India and Ors. vs. Ram Kumar Thakur
    2009(1) sec 122 - referred to.
                        Case Law Reference:
H    2008 (1 O) sec 161            referred to.   Para 5
UNION OF INDIA & ANR. v. BHASKARENDU DATIA 545
                 MAJUMDAR
  2009(1 > sec 122             referred to.         Para 5          A
  1995 Suppl. (1) sec 1        relied on.           Paras 6
                                                    and 7
  1996 (10) sec 555            held inapplicable. Para 7
                                                                    B
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7116 of 2010.

    From the Judgment & Order dated 18.05.2009 of the High
Court of Delhi at New Delhi in LPA No. 168 of 2009.
                                                                    c
    P.P. Malhotra, ASG. Harish Chandra, SWA Qadri, S.
Bakshi, R. Bastiasn, S. Kaushik Manish Bhardwaj, Arvind
Kumar Sharma for the Appellants.

    Ashok H. Desai, Rajiv K. Garg, Vineet Garg, Annam D.N.          D
Rao for the Respondent.

    The Judgment of the Court was delivered by

     HARJIT SINGH BEDI, J. 1. Delay condoned.
                                                                    E
     2. Leave granted.

     3. This appeal by way of special leave has been filed by
the Union of India and the State Trading Corporation impugning
the judgment of the Division Bench of the High Court of Delhi
dated 18th May 2009 whereby the judgment of the Single              F
Judge dated 9th January 2009 has been set aside and a
direction has been issued that the case of the respondent for
appointment as Director Marketing in the State Trading
Corporation be re-considered in the manner indicated therein.
The facts of the case are as under:                                 G
     4. The respondent Bhaskarendu Datta Majumdar joined
the services of the State Trading Corporation (hereinafter called
"Corporation") in April 2001 as Executive Secretary to the
Chairman-cum-Managing Director of the Corporation and was
                                                                    H
    546      SUPREME COURT REPORTS                 [2010] 10 S.C.R.


A   on the relevant date working as Chief General Manager. A post
    of Director (Marketing) having fallen vacant, the respondent
    applied for the post on the 27th December 2005. Interviews
    were held on 4th March 2006 by the Public Enterprises
    Selection Board (PESB for short) and two candidates were
B   shortlisted, the respondent being at serial No.1, and one Neeraj
    Mishra at serial No.2 in order of preference. Consequent to the
    selection, the Central Vigilance Commissioner also issued a
    clearance for the respondent on or around 26th March 2006,
    and it is the case of the respondent that the Department of
c   Commerce, being the Ministry concerned, forwarded his name
    to the Appointments Committee of the Cabinet (ACC for short)
    for final approval. Further, it is the case of the respondent tl1at
    his name has been endorsed by the Home Minister as the
    second Member of the ACC, but the incumbent Cabinet
D   Secretary who had earlier been the Managing Director of the
    Corporation, scuttled his appointment taking note of some
    serious allegations which at one point of time had been levelled
    against him. It appears that in 1994-95 the respondent had been
    dragged into various departmental enquiries and two criminal
E   investigations by the Central Bureau of Investigation at the
    instance of the said officer, but he was exonerated of any
    misdoing and the adverse entries of doubtful integrity were
    thereby deleted from his confidential roll. As a consequence of
    what had happened, Neeraj Misra who was at serial No.2 was
    proposed for appointment but finally even his name too was
F   dropped and a direction was issued by the ACC to undertake
    a fresh process for filling up the vacancy. The respondent
    thereupon filed a Writ Petition in the Delhi High Court which was
    dismissed by the learned Single Judge holding that it was the
    exclusive jurisdiction of the ACC to assess the suitability of a
G   candidate and the court could not interfere in this discretion
    except in a case of proven mala tides. The Letters Patent
    Appeal that followed has been allowed and that judgment is
    now challenged before us. The primary reason that weighed
    with the Division Bench was that the ACC had given no reasons
H
 UNION OF INDIA & ANR. v. BHASKARENDU DATTA 547
       MAJUMDAR [HARJIT SINGH BEDI, J.]
whatsoever, not even on the file, as to why the recommendation     A
of the PESB was being ignored.

      5. Mr. Malhotra, the learned Additional Solicitor General
for the appellant Union of India, has submitted that as the ACC
was the final authority to make the selection and appointment,     i3
it alone had the jurisdiction to determine the suitability of an
officer and a decision taken by the committee was not open to
challenge except on grounds of mala fide or for other
exceptional reasons. He has pointed out that there was no
plausible reason for the Division Bench to have interfered, more   C
particularly as there was no rule which required that reasons
be recorded by the ACC while differing with the opinion of the
PESB. Reliance for this assertion has been placed on Union
of India & Anr. vs. Samar Singh & Ors. 1996 (10) SCC 555,
Chief Executive Officer vs. Biswa Bhusan Nandi 2008 (10)
SCC 161 and Union of India and Ors. vs. Ram Kumar Thakur           D
2009(1) sec 122.

     6. Before the Division Bench, the primary issue raised on
behalf of the respondent herein was that his name had been
recommended by all the authorities and two members of the          E
ACC but in the final analysis the ACC had not accepted the
recommendation and it was thus incumbent on the ACC to offer
reasons for differing with the proposal made by the PESB and
though the said reasons were not required to be communicated
to the officer concerned, it was nonetheless open to the Court     F
to examine the record to see if any reason had indeed been
recorded. Reliance was also placed on the decision of this
Court in Union of India and Ors. vs. N.P.Dhamania & Ors.
1995 Suppl. (1) SCC 1 in which it has been held that though
the ACC was the appointing authority and therefore entitled to     G
differ with the recommendation of the PESB, it was necessary
to give reasons for doing so to obviate any chance of
arbitrariness and for that purpose the Court could look into the
record to satisfy itself.

    7. We have considered the arguments advanced by the            H
    548      . SUPREME COURT REPORTS               [2010] 1o·s.c.R:


A learned counsel for the parties. We find that the judgment in
  Samar Singh's case (supra) is inapplicable. In this matter the
  name of the officer had not been included in the panel prepared
  by the Special Committee with the result that his case was not
  considered by the ACC. A perusal of the judgment would reveal
B that the primary issue raised before the court was as to the
  exclusion of the officer from the panel prepared by the Standing
  Committee. We find that the other judgments cited by the
  learned ASG are not relevant to the present matter and do not
  merit any discussion whatsoever. On the contrary,
c N.P.Dhamania case (supra) is almost identical not only on
  facts but even on the legal issues raised. It has been held as
  under:

          "19. Notwithstanding the fact that it is open to AAC which
          alone is the appointing authority and not the Minister
D         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
E         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:

F         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
G         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
H
UNION OF INDIA & ANR v, BHASKARENDU DATIA 549
      MAJUMDAR [HARJIT SINGH BEDI, J.]

     always open to the authority concerned to produce the             A
     necessary records before the Court.

     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        B
     date, their immediate junior officer was promoted with
     consequential benefits of seniority and salary etc."

     8. These observations apply fully to the facts of this case.
The Division Bench had also noticed, (and it has not been
denied by the Union of India) that after the various enquiries         C
and investigations had been completed and the respondent
exonerated on merits he had obtained two promotions, first as
General Manager and thereafter as Chief General Manager,
and the entry with regard to his doubtful integrity which had been
made on account of the pending matters, had also been                  D
removed. The Division Bench had also called for the
confidential record of the respondent and observed that he had
been assessed as "very good" for the years 2001-02 and 2002-
03, "Excellent" for the year 2003-04 and "Outstanding" for the
years 2004-05 and 2005-06. It goes without saying that these           E
were the crucial years in so far as the respondent's case for
promotion to Director (Marketing) was concerned. The Division
Bench also observed, that though requested, the counsel for
the Union of India had not been able to show any record
indicating the reasons as to why the ACC had differed with the         F
opinion of the PESB, leading to the only inference that no
reasons whatsoever had been recorded. We are, therefore, of
the opinion that there is no merit in this appeal. It is accordingly
dismissed with no order as to costs.

K.K.T                                         Appeal dismissed.