Special leave granted.
This appeal is directed against the judgment of the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as ‘the Tribunal’). It relates to empanelment and appointment on the post of Secretary to the Government of India or equivalent post. Respondent No. 1 (hereinafter referred to as the respondent’) is a member of the Indian Administrative Service (I.A.S.) belonging to 1962 batch. In February 1990 he was promoted as Additional Secretary. In 1993 a Special Committee consisting of the Cabinet Secretary, the Principal Secretary to the prime Minister and the Home Secretary prepared a panel of I.A.S. officers of 1962 batch for appointment as Secretaries to the Government of India or equivalent post. The said panel was considered by the Appointments Committee of the Cabinet (for short‘ACC’) of the Government of India and appointments were made on the posts of Secretaries in March 1993. The respondent was not empanelled and hence he was not appointed as Secretary. Feeling aggrieved by the said nonconclusion in the panel, he filed a petition (O.A. No. 539 of 1994) before the Tribunal which has been allowed by the impugned judgment dated May 14, 1996. The Tribunal has declared that the action of the appellants in Omitting the name of the respondent from the panel prepared for appointment to the post of Secretary to the Government of India or equivalent post without proper consideration of his case is arbitrary, unsustainable and void and has directed the appellants to consider the suitability of the respondent for empanelment and appointment on the post of Secretary to the Government of India or equivalent post afresh as on the date on which respondents Nos. 2 to 10 herein were considered for empanelment after taking into account Annual Confidential Reports (ACRs) of the respondent for the relevant period and other relevant facts and materials in the light of the guidelines contained in paragraph 14 of the Central Staffing Scheme and, if on such consideration the respondent is found suitable, the Tribunal has directed the appellants to consider his appointment on one such post.
The Central staffing Scheme, as contained in the Office Memorandum dated July 15, 1992 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), prescribes the procedure for selection for appointment of officers to Secretarial posts of and above the rank of Under Secretary to the Government of India and to certain important nonsecretarial posts. Paragraph 14 of the said Scheme relates to the posts of Additional secretary/Special Secretary/Secretary and reads as under:-
"14. Selection for inclusion on the
panel of officers adjudged suitable
for appointment to the posts of
Additional Secretary or Special
secretary/Secretary to the
Government of India and Posts
equivalent thereto, will be
approved by the ACC on the basis of
proposals submitted by the Cabinet
Secretary. In this task, the
Cabinet Secretary may be assisted
by a Special Committee of
Secretaries for drawing up
proposals for the consideration of
ACC. As far as possible, panels of
suitable officers will be drawn up
on an annual basis considering all
officers of a particular year of
allotment from one service together
as a group. Inclusion in such
panels will be through the process
of strict selection and evaluation
of such qualities as merit,
competence, leadership and a flair
for participating in the policy-
making process. Posts at these
levels at the Center filled
according to the Central Staffing
Scheme are not to be considered as
posts for the betterment of
promotion prospects of any service.
The needs of the Central Government
would be the paramount
consideration. While due regard
would be given to seniority,
filling up of any specific post
would be based on merit, competence
and the specific suitability of the
officer for a particular vacancy in
the Central Government."
Before the Tribunal the respondent assailed his nonselection on the following grounds:-
(i) the Special committee has not been constituted in
accordance with the provisions contained in the
Central Staffing Scheme inasmuch as one of the
members, namely, Shri A.N. Varma, Principal
Secretary to the prime Minister, being a retired
secretary to the Government of India, could not be
legally appointed as members of the Committee;
(ii) the selection made by the Special Committee is
vitiated because officers junior to respondent
have been empanelled overlooking the seniority and
merit of the respondent; and
(iii)as the respondent had been empanelled and
appointed as Additional secretary the non-
inclusion of the respondent in the panel amounts
to a colourable exercise of power and was a result
of taking into consideration matters which are
extraneous and the selection is vitiated by legal
mala fides.
None of these contentions found favour with the Tribunal. The Tribunal held that the principal Secretary to the prime Minister appointed by the Government of India is also a Secretary discharging governmental functions and there is nothing in the Central Staffing Scheme to show that a serving Secretary alone can function as a member of the special committee. The Tribunal also held that under the Central Staffing Scheme appointment to the posts of Additional secretary/Special Secretary and Secretary to the Government of India and equivalent post are filled on deputation basis on consideration of the various factors mentioned in the said Scheme and such appointment is not by way of promotion but by way of appointment after strict selection and evaluation of such qualifications as merit, competence, leadership and flair for participation in the policy making process and that the paramount consideration in making the selection is the need of the Central Government and that it is incorrect to say that the seniority must be the determining factor for empanelment and appointment to the post of Secretary to the Government of India. The Tribunal has further found that though respondent has alleged in his application that the proceedings were vitiated by mala fides, it has not been stated anywhere in the application that any one of the members of the Committee of the Special Secretaries or the Cabinet secretary or the Appointments committee of the Cabinet has any special reason to be prejudiced against him and that the allegation that some of the officers who had completed the tenure of their deputation were allowed to continue as Additional secretaries and have been appointed as secretaries to the Government of India on the basis of the panel does not amount to an allegation of mala fides since allowing any officer to continue beyond the period of tenure of deputation has nothing to do with the process of selection and empanelment. The tribunal has observed that even if the respondent had excellent service record throughout his career and even though he is senior to respondents Nos. 2 to 10, if the Cabinet Secretary with the assistance rendered to him by the Special committee of the Secretaries did not find the respondent suitable for inclusion in the panel and found respondents Nos.2 to 10 suitable for such inclusion, it is not possible to infer legal mala fides if the case of the respondent had been properly considered. The Tribunal was of the view that since there is no reason to assume that the preparation of the panel by the Cabinet Secretary assisted by the Committee of Special secretaries was not done properly, it could not accede to the prayer of the respondent to call for records of proceedings and the ACRs of the respondent as also of the officers who have been selected and empanelled and to make a comparative evaluation of merits. The Tribunal, however, perused the selection file and the ACRs of the respondent with a view to see whether the respondent has been duly considered for empanelment in accordance with the guidelines contained in paragraph 14 of the Central Staffing Scheme. On a perusal of the said ACRs the Tribunal has found that after his promotion on the post of Additional Secretary in 1990 the respondent had earned outstanding entries in the ACRs and excellent commendation from the Ministers concerned throughout. The Tribunal has also referred to the Minutes of the meeting of the Special committee of the Secretaries held on December 22, 1992 for the purpose of drawing up of the panel for holding the post of Secretary and equivalent post and has pointed out that in the said Minutes nothing is seen to be stated about the suitability or non-suitability of the respondent. According to the Tribunal, while empanelment is on the basis of strict selection though the reason for non-inclusion in the panel need not be intimated to the officer concerned, the selection proceedings should indicate as to how a senior member of the service did not deserve to be included in the panel. Since there is nothing to indicate in the Minutes of the Special committee of secretaries or in the file relating to the empanelment anywhere that there has been an application of mind to the merits of the respondent and his suitability for being appointed to the post of Secretary to the Government of India or equivalent post, the decision was taken without application of mind and thus arbitrary. The Tribunal, therefore, gave the direction referred to above.
In the matter of judicial review of a selection for appointment on a particular post the law is well-settled by the decisions of this Court. In Dalpat Abasahed Solunke and Other V. Dr. B.S. Mahajan and Others, 1990 (1) SCC 305, it has been laid down :-
It is needless to emphasise that it
is not the function of the court to
hear appeals over the decisions of
the Selection Committees and to
scrutinize the relative merits of
the candidates. Whether a candidate
is fit for a particular post or not
has to be decided by the duly
constituted Selection committee
which has the expertise on the
subject. The court has no such
expertise. The decision of the
selection committee can be
interfered with only on limited
grounds, such as illegality or
patent material irregularity in
the constitution of the Committee
or its procedure vitiating the
selection, or proved mala fides
affecting the selection etc."
In Dr. Jai Narain Misra v. State of Bihar and Ors. 1971 (1) SCC 30, it was said :-
"So far as the question of
suitability is concerned, the
decision entirely rested with the
Government. In other words, the
Government is the sole judge to
decide as to who is the most
suitable candidate for being
appointed as the director of
Agriculture. for discharging that
responsibility it was open to the
Government to seek the assistance
of the Public service Commission.
In our judgment the High Court was
not justified in calling for the
records of the Public service
Commission and going through the
notings made by various officers of
the Commission as well as the
correspondence that passed between
the Commission fact that the
Government sought the assistance of
the commission and not that of the
High Court for finding out the most
suitable candidate. In this case
there was no complaint of mala
fides either on the part of the
Government or the Commission. That
being so the interference of the
High Court in the matter of
selection made by the Government
was not [P. 32]
In Major General I.P.S. Dewan v. Union of India and Others, 1995 (3) SCC 383, it has been held that the principle that administrative orders affecting rights of the citizens should contain reasons therefor cannot be extended to matters of selection and unless the rules so require, the Selection Committee/Selection Board is not obliged to record reasons why are selecting a particular person, as the case may be [at p. 389].
The Tribunal was conscious of the limitations on its power and has observed :-
"Once a competent authority makes a
selection for appointment or
empanelment considering all those
who are eligible in accordance with
rules, instructions or guidelines
then the Tribunal or High Court
will not act as an appellate body
and interfere on the ground of
insufficiency of the material or
incorrectness of the decision
applying its own yard stick. If the
decision making process is not
vitiated the resultant decision
cannot be interfered with by the
tribunal on the ground that It if
were the Tribunal which took the
decision it would not have been the
same. Even if on a perusal the file
relating to the selection on a
comparative assessment of the
merits of the applicant viz-a-viz
respondents 3-11, the Tribunal
comes to a conclusion that the
applicant was more meritorious than
them, the Tribunal cannot interfere
with the selection and
empanelment."
"If it is seen that the Cabinet
secretary assisted by a Special
committee of Secretaries made a
selection considering all the
eligible officers in the light of
the guidelines contained in the
Central Staffing Scheme, then we
are of the considered view that
interference would not be justified
even if a different view on the
selection may possibly be taken."
The Tribunal looked into the minutes of the meeting of the Special Committee of the Secretaries held on December 22, 1992 to find out whether the name of the respondent was placed before the said Committee for consideration for the purpose of empanelment. The Minutes show, and this fact is not disputed, that the name of the respondent was amongst the 81 I.A.S. officers of 1962 batch who were considered by the Special Committee. In the said minutes it is recorded that the committee after screening the CR dossiders of all the officers and keeping in view their record and experience including the conceptual and leadership abilities, achievements and potential for general management positions, had recommended 19 officers of 1962 batch of I.A.S. for inclusion in the panel for holding the post of Secretary and 7 officers for holding non-secretarial posts. The name of the respondent was not included in those lists.
This would hold show that the Committee, Keeping in view the record and experience including the conceptual and leadership abilities, and potential for general managements positions, had recommended 19 I.A.S.. officers for holding the post of Secretaries and 7 I.A.S. officers for holding a non-secretarial post. Merely because the minutes of the Committee do not contain the reason for no-selection of the respondent does not mean that there has been no proper consideration of the merits and suitability of the respondent and as result the selection is vitiated. From the minutes of the Special Committee it is evident that in the matter of empanelment of officers the Special Committee has taken into account the criteria that are laid down for holding such selection in paragraph 14 of the Central Staffing Scheme and, therefore, it cannot be said that the said selection is vitiated on account of non-inclusion of the name of the respondent in the panel.
Shri Ashok Grover, the learned senior counsel appearing for the respondent, has laid emphasis on the remarks in ACRs about appraisal of the performance of the respondent subsequent to his promotion on the post of Additional Secretary to which reference has been made by the Tribunal in the impugned judgment. The learned counsel has submitted that since the performance has been rated as outstanding and excellent, the Tribunal was justified in holding that there is no proper consideration of the case of the respondent by the special Committee. We are unable to hold that since the performance of the respondent after his promotion as Additional Secretary had been found to be excellent and outstanding, the non-inclusion of his name from the panel by the Special Committee must lead to the inference that there was no proper consideration of the merit and suitability of the respondent for empanelment by the special Committee.
For the reasons aforementioned, the directions given by the Tribunal in the impugned judgment cannot be upheld and have to be set aside. The appeal is, therefore, allowed, the judgment of the Tribunal dated May 14, 1996 is set aside and O.A. No. 539 of 1994 filed by the respondent is dismissed. No order as to costs.