Dulal Ranjan Biswas vs State of West Bengal

Nisith Kumar Batabyal, J.—This judgment ogoverns Matter No. 4251 of 1998 and Matter No. 3841 of 1993 of this Court.

The Petitioners in Matter No. 4251 of 1993 are directly recruited Sub-Inspectors of Police, West Bengal ; their respective dates of

appointments and confirmation are shown in a chart annexed with the writ-petition and marked as annexure ''A''. Their services are guided and

controlled by the Police Regulations of Bengal, 1943 and Departmental Rules and Orders as also by the West Bengal Service Rules. Their next

promotion under the Rules is to the rank of the fns-pectors of Police, W.B. For the purpose of their promotion, the D.I.G. of each Range

constitutes a Board, i.e. Range Board which draws up the approved lists for the range for considering the names of the Sub-Inspectors for

promotion. To become eligible for such promotion, a candidate upon completion of nine years of service, has to qualify in a written examination,

weeks in-service Training and interview held by the D.I.G. of each range. For the purpose of giving final promotion, a conference of all

D.I.G.''s, I.G.''s and Addl. I.G.''s is held under the aegies of the D.G. and I.G.P. of W.B. wherein the Trial Lists of each range is placed for

consideration for the purpose of drawing up the Final Lists at the said Conference. Personal appearance of any Sub-Inspector is not required. The

only materials to be considered are the service records and the Range approved lists drawn up by the respective D.I.G.''s of each Range, the

Petitioners qualified for and were included in the Trial Lists drawn up by their Range Board as per Rules in 1990, 1991 and 1993:

At the conference of the D.I.G.''s of Police held by the D.G. and I.G.P., W.B. in 1990 and 1991, the candidature of the Petitioners were not

considered due to the administrative decision taken at the Conference to restrict the zone of consideration upto the years of 1973 and 1974 only.

At the conference held by the D.G. and I.G.P. with Addl. D.G. and. I.G.P.''s and D.I.G.''s held in May, 1993, it was decided to restrict the zone

of consideration to the Officers recruited upto 1978 as Sub-Inspectors. Xerox copy of the Meeting held by the said Conference in May, 1993 is

annexed with the writ petition and marked with the letter ''B''. The Petitioners, it is alleged, have reasons to believe that the board did not consider

their cases on merits and selected the persons who had blemished records of service. The Members of the Conference, it is alleged, declared

many candidates including the Petitioners unfit by casting a stigma upon'' their candidature without assigning any reasons or giving an opportunity to

the concerned candidates to defend themselves. It is alleged that the Petitioners have brilliant service record and they have all along performed their

duties to the best of their abilities. It has also been alleged that the findings of the Conference will result not only in supersession of the Petitioners

by their junior officers but in permanent blockade of all promotional avenues of the Petitioners. It is in effect double punishment inflicted upon the

Petitioners for no fault of theirs. It has been stated that a number of, the Petitioners made representations, through Proper Channel to the D.G. and

I.G.P. bringing all the facts for reconsideration of his decision taken at the conference held in 1993. Unfortunately, such representations are

gathering dust only, as no reply has been sent thereto. Xerox copies of the representation are annexed with the writ petition and marked as.letter

''C. Being aggrieved by and dissatisfied with that the arbitrary, mala fide and discriminatory exercise of discretion of the Respondents resulting in

supersession of the Petitioners by their juniors, the Petitioners have come before this Court for the following, among other, reliefs:

a) issue of a writ or a mandamus directing upon the Respondents not to give any effect or further effect to the final Trial List of Sub-lospecors for

promotion to the rank of Inspectors of Police prepared in accordance with the conference of the D.I.G. and D.G.s and I.G.P.s held on 6.5.1993,

7.5.1993 and 8.5.1993;

b) a writ of mandamus directing the responents to maintain do or cause to be done any such act, deed or thing affecting the interse seniority of the

Petitioners vis-a-vis their junior colleagues.

In the affidavit-in-opposition filed on behalf of the Respondents No. 1,2, & 3, it has been stated that the vacancies in therank of Inspectors of

Police are filled by promotion in terms of Regulations 737 and 738 of Police Regulations of Bengal, 1943. It has also been stated that the

Petitioners were considered unfit on the basis of their records. Some officers who were juniors to the Petitioners were found fit for promotion by

the Conference on the basis of their service records. They were selected for their promotion in compliance with the Rules & Regulations governing

the field and not in any arbitrary or mala fide manner. According to the Respondents, the petition is not bona fide and should be dismissed.

In Matter No. 3841 of 1993 which has been taken up along with the matter mentioned above, another Sub-Inspector of Police has come as

the/writ Petitioner. The allegations made in this writ petition are almost identical with the allegations made in the writ petition mentioned above. In

the A.C., the same position has been taken up by the Respondents as taken in the other writ petition. In both the cases similar affidavits-in-reply

have been filed by the writ Petitioners.

Mr. Shakti Nath Mukherjee, Learned Sr. Advocate, appearing on behalf of the writ Petitioners has drawn the attention of the Court to pana. IV

at page 24 of the Annexures of the writ petition containing the minutes of the Conference of the D.G. and I.G.P. of West Bengal with Addl. D.G.''s

and I.G.P.''s and D.I.G.''s held on May 6, 1993, May 7, 1993 and May 8, 1993 as per Annexure ''B'' to the writ petition. The relevant

paragraphs reads as follows:

IV. A list of 235 candidates eligible S.l.''s (U.B.) was prepared as per their seniority on the basis of lists of candidates whose names were

recommended by the Range Boards. The list was placed for consideration in the Conference and the Conference took up for consideration names

of all the 235 Officers as per the lists be prepared without omitting anyone.

After considering the cases of candidates ending with the allotment year of 1978 whose names are placed at SI. No. 1-215 and also the name of

S.I. Amit Kr. Goswami of 1978, whose name was inadvertently placed at SI. No. 229 instead of being placed below Sl. No. 183, the members

were of unanimous view that the Trial Lists of S.l.''s fit for promotion to the rank of Inspectors should not be very long. A long List beyond the

scope of prospective vacancies would adversely affect the career prospects of other Officers and will also bring down their morale, apart from

creating serious but avoidable administrative problems. A long Trial List of S.l.''s fit for promotion as Inspectors will take several years to be

exhausted and the junior batches of S.l.''s will have to keep on waiting till then. It is after taking all these factors into consideration that the

Conference decided to restrict the Zone of consideration to candidates with year of allotment of 1978 and above only (i.e.) from Sl. No. 1.-215

and SI. No. 229 and prepared Trial Lists accordingly. There was no instance of any suppression without valid reasons and each case was

considered on merits after meticulously going through the service records, Annual Confidential Rolls etc. of individual officers and applying the

collective mind of the members of the Conference to it with utmost care and caution.

Mr. Mukherjee has also drawn the attention of the Court to the opening part of para. VI of the said minutes at page 28 of the annexures to the

writ petition which reads as follows:

VI. The conference also examined the service records. Annual Confidential Rolls etc. of the following S.l.''s (U.B.) but on a very careful

consideration, did not consider them suitable on the basis of their records of service for inclusing of their names in the Trial Lists of S.l.''s (U.B.) to

be promoted as Inspectors (U.B.,).

Mr. Mukherjee has also drawn the attention of the Court to Rules 737 and 738 of the Police. Regulations Bengal, 1943 which deal with the

method of recruitment of Inspectors and selection of Sub-Inspectors and Sergeants fit for promotion to the rank of Inspectors. Rule 737 lays

down that vacancies in the rank of Inspectors shall be filled by promotion from the rank of. Sub-Inspectors and Sergeants. The provincial

approved lists of Sub-Inspectors and Sergeants fit to be inspectors shall be maintained in the Office of the Inspector-General. A Departmental

Board consisting of the Inspector-General and the Deputy Inspector-General in Conference shall make selections for these lists from nominations

obtained from the D.I.G. before the conference. The next Rule (i.e.) Rule 738 lays down the procedure for the selection of Sub-Inspector and

Sergeants, fit for promotion to the rank of Inspector for inclusion in the provisional approved lists, as laid down in Appendix-XLIII.

Mr. Mukherjee has submitted that the selection made by the Board was arbitrary as rejection was made without any material, without applying

any norms and without giving any valid reasons for the same. The only reasons disclosed is ''unsuitable'' on the basis of the records of service.

According to Mr. Mukherjee, a conclusion which is not possible on the basis of the available materials is perverse. In support of his contention Mr.

Mukherjee, has relied upon the principles laid down in Union of India (UOI) Vs. Mohan Lal Capoor and Others, Uma Charan Vs. State of

Madhya Pradesh and Another, , Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , Maharashtra State Board of Secondary and

Higher Secondary Education Vs. K.S. Gandhi and Others, and S.N. Mukherjee Vs. Union of India,

Mrs. Archana Sengupta, Learned Sr. Advocate has appeared on behalf of the State Respondents in Rampada Mondal''s case (i.e.) Matter

No. 3841 of 1993. Mr. Asit Goswami, Learned Advocate, has appeared on behalf of the State Respondents in Dulal Ranjan Biswas and Ors. v.

State of W.B., in Matter No. 4251 of 1993. Mrs. Sengupta, in support of her contention has submitted that there is no substance in the connection

of the writ Petitioners as there was nothing arbitrary or illegal in the matter of selection of candidates for promotion to the post of Inspector of

Police. She has relied upon the principles laid down in Sarat Kr. Dash v. Biswajit Pattanayak and Ors.1951 Supp. (1) S.C.C. 434, Mr. Goswami,

Learned Advocate has in course of his argument relied upon the principles laid down in M.L. Kapoor''s case(A.I.R. 1987 S.C. 1989) as also on

the principles laid down in S.B.I. v. Md. Mynuddin AIR 1987 S.C. 1989. He has also submitted, all the conditions laid down in Rules No. 737

and 738 of P.R.B. 1943, have been complied with in this case, by the State. Mr. Goswami has further drawn the notice to an unreported decision

of this Court in CO. No. 12305 (W) of 1993 in which a Learned Single Judge of this Court in an exactly similar case directed the Respondents

concerned to give effect to the lists for promotions with a condition that the claim of the Petitioners shall be considered after giving due credit to the

unblemished service records of the Petitioners and rewards and promotions credited to their account as indicated in the writ petition, if necessary,

by reviewing the claim of the writ Petitioners. Mr. Goswami has submitted that this case which stands on same footing may be disposed of in a

similar manner by this Court.

The learned Lawyers of both the sides have relied upon the pinciples laid down in M.L. Capoor''s case (11), while Mr. Mukherjee, the

learned Senior Advocate has emphasized upon the principles referred to in para.28 of the reported decision, Mr. Goswami, learned Advocate, has

referred to both paras.28 and 55 of the reported decision. In para.28, the following view was taken by the Hon''ble Judges of the apex Court.

In the context of the effect upon the rights aggrieved persons, as members of a public service who are entitled to just and reasonable treatment,

by reasons of protections conferred upon them by Arts. 14 & 16 of the Constitution, which are available to them throughout their service, it was

incumbent on the Selection Committee to have stated reason in a manner which would disclose how the record of each officer superseded stood in

relation to records of others who were to be preferred, particularly, as this is practically the only remaining visible safeguard against possible

injustic and arbitrariness in making selections. If that had been done, facts of service records of Officers considered by the Selection Committee

would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and

the actual conclusions. They disclosed how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-

judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way, can opinions or decisions

recorded be shown to be manifestly just and reasonable. We think that it is not enough to say that preference should be given because a certain

kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to. We, therefore, think

that the mandatory provisions of Regulation 5(5) were riot complied with. We think that reliance was rightly placed by Respondent, on two

decisions of this Court relating to the effect of noncompliance with such mandatory provisions....

In para. 55 of the reported decision at page 103, Their Lordships took the following view:

I am not impressed by the argument that Rules of natural justice require that when a senior is pro: posed to be superseded, he should be given

notice and his explanation called. Inclusion of a name in the Select List, at best, can give the person only an inches right for appointment during the

year when the Select List would be current. Wften that period is over, he has right to be included in the Select List for the next year. He has only a

right to be considered for inclusion in it. In other words, inclusion of a person''s name in the Select List in a year does not give that persona vested

right to have his name included in the Select List for the succeeding year.

....

In Menaka Gandhi''s case (Supra) in para.65, it has been held that the exercise of power by the Passport Authority ''in the interest of the

general public'' in s.10(3)(c) of the Passports Act, 1967, is not made dependent on the subjective optnion of the- Passport Authority as regards

the necessity of exercising it on one or more of the grounds stated in that Section, but the Passport Authority is required to record in writing a brief

statement of reasons for impounding the passport and save in certain exceptional circumstances to supply a copy of such statement to the person

affected, so that the person concerned many challenge the decision in Appeal and the Appellate Authority can examine whether the reasons given

by the Passport Authority are correct, and if so, whether they justify the making of the order impounding the passport.

In Umacharan''s case (Supra), it was held where the Selection Committee in review of selection list, without recording any reason superseded

a member of State Police Service, the Selection Committee would be said to have contravened the mandate in Regulation 5(5) as it was incumbent

on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation

to the record of others, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in making

selections. It is thus obvious that the principles which were enunciated in M.L. Capoor''s case (Supra) were echoed in this case.

In Maharashtra State Board of Secondary and Higher Secondary Education''s case (Supra) in paras.20and21 of the reported decision it has

been held that the reasons are harbinger between the mind of the maker of the order and the decision arrived at. They also exclude the chances to

reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an inbuilt support to the conclusion reached. When an order

affects the right of a citizen, irrespective of the fact whether it is a quasi-judicial or administrative order, and unless the rule expressly or by

necessary implication excludes recording of reasons it is implicit that the principles of natural justice or fairplay require recording of germane and

precise of relevant reasons as a part of fair procedure. In an administrative decision, its order itself may not contain reasons. It may not be the

requirement of the rules, but at the least, the record should disclose reasons. It may not be like a judgment. The extent and nature of the reasons

would depend on the particular facts and circumstances. What is necessary (is that the reasons are clear and explicit so as to indicate that the

authority has given, due consideration to the points incontroversy. The need for recording of reasons is greater in a case where the order is passed

at the original stage. The appellate or revisional authority if it affirms such an order need not give separate reasons, if the appellate or revisional

authority disagrees, the reasons must be contained in the matter under challenge. The recording of reasons is also an assurance that the authority

concerned consciously applies mind to the facts on record. It also aids the appellate or revisional authority or the supervisor jurisdiction of the High

Court under Article 226 or the appellate jurisdiction of the Supreme Court under Article 136 to see whether the authority concerned acted fairly

and justly to mete out justice to the aggrieved person.

In S.N. Mukherjee''s case ( Supra), the Appellant in a writ petition had challenged the invalidity of the findings and the sentence recorded by

the General Court Mart>al on November 29, 1978, the order dated May 11, 1979, passed by the Chief of Army Staff, confirming the findings

and the sentence recorded by the General Court Martial and the order dated ""May 6, 1980, passed by the Central Government dismissing the

petition filed by the Appellant under s.164(20) of the Army Act, 1950. In that case, it has been held by the Apex Court of our land that in view of

the expanding horizon of the principles of natural justice, the requirement to record reason can be considered as one of the principles of natural

justice which govern ^the exercise of power by administrative authority. The Rules of natural justice are not embodied rules. The extent of their

application depends upon the particulars statutory framework whereunder jurisdiction has been conferred on the administrative authority. With

regard to the exercise of a particular power of an administrative authority including exercise of judicial or quasi-judicialprovisions. The legislatures

while conferring the said power may fell that it would not be in the larger public interest that the reasons for the order passed by the Administrative

Authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by

making an expressed provision to that effect. Such an exclusion can also arise by necessary implication from the nature of the subject-matter, the

scheme and the provision of the enactment. The recording og reasons by an administrative authority serves a salutary purpose, namely, it excludes

chances of arbitrariness and assures a decree of fairness in the process of decision-making. The said purpose would apply equally to all decisions

and its application''cannot be confined to decisions which are subject to appeal, revision or judicial review. Therefore, the requirement that reasons

be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the

decision is subject to the appeal, revision or judicial review. It is, however, not required that the reasons should be as elaborate as in the decision

of a Court of law.

Mr. Goswami, learned Senior Advocate appearing on behalf of the State/Respondents ''in Matter No. 4251 of 1993 has cited M.L. Capoor''s

case (Supra) para.55 and the State Bank of India v. Md. Mynuddin(Supra). The relevent portion of para. 55 of M.L. Capoor''s case has already

been quoted above. In Mynuddin''s case (7), it has been held that whenever promotion to a higher post is to be made on the basis of merit-cum-

suitability, no officer can claim promotion to the higher post as a matter of right by virtue of seniority alone. It is not sufficient that in his confidential

reports it is recorded that his services are ''satisfactory''. An Officer may be capable of discharging duty or the post held by him satisfactorily but he

may not be for the higher post. Before such promotion can be effected, it is the duty of the management to consider the case of the officer

concerned on the basis of the relevant materials. If promotion has been denied arbitrarily or without any reason, ordinarily the Court can issue a

direction to the management to consider the case of the officer concerned for promotion but, it cannot issue a direction to promote the officer

concerned to the higher post without giving an opportunity to the management to consider the question of promotion, the court is not by its very

nature competent to appreciate the abilities, qualities or attributes necessary-for the task officer or the duty of every kind of post in the modern

world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which

is to be filled up by selection. It is only when the process of selection is vitiated on the ground of bias, mala fides or any other similar vitiating

circumstances, other considerations will arise.

Mr. Goswami, has also referred to the decisions of a Learned Single Bench of this Court in the unreported decision of C.O. No. 12305(W) of

1993 in respect of his main contention.

Mrs. Archana Sengupta, learned Senior Advocate, appearing on behalf of the State Respondents in Matter No. 3841 of 1993 has relied upon

the principle laid down in Sarat Kr. Dash v. Biswajit Pattanayak(Supra). In that case, it was held that in case of merit-cum-suitability seniority

should have no role to play when the candidates were not found to be meritorious and suitable for higher post even if a most junior man may steal a

march over his seniors and jump the queue for accelerated promotion. This principle inculcates dedicated service, and accelerates ability and

encourages merit to improve excellence. Seniority would have its due place only where the merit and the ability are approximately equal or where it

is not possible to assess interse merit and suitability of two equally eligible candidates who come close in the order of merit and ability. Under the

circumstances,, seniority will play is due role and would be called in aid for consideration. But in a case where the relevant merit and suitability or

ability have been considered and evaluated and found to be superior then seniority has no role to play.

It may be pointed out that in this case no argument has been advanced from the side of the writ Petitioners that they are entitled to be

considered for promotion simply by virtue of their seniority in service. Trje Learned Advocate does not dispute the contention of Mrs. Sengupta

that in case of merit-cum-suitability. seniority may have no decisive role to play in the matter of selection of candidates for promotion to a higher

post except in the marginal cases as laid down by Their Lordships of the Supreme Court in Sarat Kr. Dash''s case (Supra). What has been

highlighted from the side of the writ Petitioners is that the contemporaneous records of the appropriate authority must show that there were reasons

for superseding a senior officer when giving promotion to a higher post on the basis of merit-cum-suitability of the candidates. In all the decisions

cited on behalf of the writ Petitioners, the main theme has been that unless express reasons are givien for superseding the senior officers in the

matter of promotion the fairness on the part of the authority cannot be tested on a scale of reasonableness. Even in the case relied upon by Mr.

Goswami in State Bank of india v. Md Mynuddin (Supra), it has been held that where the process of selection is vitiated on the ground of bias,

mala fide or any other similar vitiating circumstance, then the process of selection cannot be said to be honest and fair In the instant case it appears

from an-nexure ''B'' at pages. 28--31 that the authority concerned on a very careful consideration of the service records and annual confidential

rools, etc. of the concerned officers did not find many officers including the writ Petitioners suitable for promotion on the basis of their service

records. The relevant records of the concerned authority were placed before this Court to see whether any reason was recorded therein for

superseding the writ Petitioners. There is only one word ''unsuitable'' in the appropriate column of the relevent records. It has been submitted by

the learned Counsel for the writ Petitioners that the expression ''unsuitable'' is only the conclusion but the brief reasons for the conclusion are not

there. According to the legal principles dicussed above, the reasons are the harbingers between the mind taking the decision to promote or not to

promote and the materials available. Both Mr. Goswami and Mrs. Sengupta have submitted that promotion cannot be claimed on the basis of

seniority alone and no one can claim any promotion to the higher post ay a matter of right on the basis of the satisfactory service and seniority only.

An officer may be capable of discharging the duties of the post held by him satisfactorily but he may not be fit for the higher post. Mr. Mukherjee,

Learned Counsel, has submitted that he does not dispute the contention of both Mr. Goswami and Mrs. Sengupta, Learned Advocates. His only

contention is that the concerned authority, though an administrative authority, ought to have recorded the reasons for holding that the writ

Petitioners were unsuitable for promotion.

In Km. Nelima Misra Vs. Dr. Harinder Kaur Paintal and others, it has been held that the shift is now to a broader notion of ''fairness'' or ''fair

procedure'' in the administrative action. As far as administrative officers are concerned, the duty is not so much to act judicially, has to act fairly.

For this concept of fairness, adjudicative settings are not necessary- nor is it necessary to have lites inter-partes,there need not be any struggle

between two opposing parties giving rise to a lie. There need not be resolution of lie inter-partes. The duty to act judicially or to act fairly may rise

in widely different circumstances. It may arise expressly or impliedly depended upon the context and considerations. All the types of non

adjudicative administrative decision-making are now covered under the general rubric of fairness in the administration. But then even such an

administrative decision unless it affects one''s person''s rights or one''s property rights for the loss of or by prejudicially affecting something which

would be jurisdically called at least a privilege does not involve the duty to act fairly consistent with the rules of natural justic.

In the case at hand, the writ Petitioners had a right to be considered for promotion though admittedly they had no right to promotion. In course

of the consideration of their claim, it appears, they were superseded by junior officers. In view of the catena of decisions of the apex Court cited

above the authority concerned ought to have recorded the reasons or the cotemproaneous records oughtto have disclosed the reasons for the

supersession. But that having not been done the process of selection was vitiated and it suffered from lack of fairness or absence of fair peocedure

in the administrative action. As a result, the inpugned selection is liable to be struck down and guashed. The argument of Mr. Goswami that in a

similar factual set-up a Teamed Single Bench of this Court passed an order in a particular way and the matters now before this Court are also be

disposed of in the same manner. The argument that a similar matter was disposed of in a particular way has got no precedent value. Only the ratio

laid down in that case has got a precedent value. From a perusal of the unreported judgment, it appears that no ratio was laid down in that case.

Therefore, that case cnanot provide any guide-line.

In view of the findings made above, the writ petition succeeds. A writ of mandamus do issue directing the Respondents not to give any effect

or further effect to the final Trial List of Sub-Inspectors for promotion to the rank of inspectors of Police prepared in accordance with the

conference of the D.G. and I.G.P., D.I.G.-s and I.G.P.-s held on May 6, 1993, may 7, 1993 and May 8, 1993. A writ of certiorari do issue

queashing the Final Trial List of S.L. -s for promotion to the rank of Inspectors prepared-in accordance with the Conference mentioned above.

Interim orders, if any, srtand vacated.

There will be no order as to costs.