Hemanta Kumar Gogoi vs State of Assam

Amitava Roy, J. (Oral) - The selection of the Respondent No.4 and his appointment on the basis thereof to the post of Member Secretary of the Pollution Control Board, Assam (hereafter for short referred to as the ''Board'') has been subjected to challenge in the instant proceeding. In that selection, the petitioner was a candidate amongst others contending for the said post. Initially, by order dated 30.4.2009 this Court restrained the official respondents from acting on the joining report of the Respondent No.4. Later on, while issuing Rule, the prayer for continuance of the said interim relief was declined.

I have heard Mr. DK Mishra, Senior Advocate assisted by Mr. AM Bujorbaruah, Advocate for the petitioner, Mr. BJ Ghosh, learned State counsel for the Respondent No.1, Mr. AK Goswami, Senior Advocate for the Board and Mr. SS Dey, Advocate assisted by Mr. M Nath, Advocate for the Respondent No.4.

The petitioner''s commentary of facts discloses that he was appointed as an Assistant Engineer in the Board on 28.3.1977 and was thereafter promoted as Environmental Engineer on 18.8.1981. He further rose to the post of Senior Environmental Engineer on 30.1.89. According to him, the Respondent No.4 is junior to him, he having joined the Board as an Assistant Engineer on 4.1.1979 and promoted as Senior Environmental Engineer on 26.5.2003. Following a spate of litigations involving the post of Member Secretary of the Board on various grounds, this Court finally by its order dated 26.6.2007 passed in WP© No.3133/2007 instituted by one Kalyan Shankar Chakraborty, left the authorities of the Environment and Forest Department, Govt. of Assam to work out the specified norms of eligibility on the basis of the relevant provisions of the Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 as well as the recommendations of the Supreme Court Monitoring Committee for selection to the post of Member Secretary and to complete the process within the time limit as fixed thereby. It was further directed that after the selection proceedings are over, the outcome thereof would be placed before the Court in a sealed cover for such further orders that may be considered necessary. The reservation expressed in WP(C) No.3144/2007 with regard to the participation of the then Chairman of the Board in the proceeding of the Selection Committee was not entertained and this Court refrained from passing any order restraining him from taking part in its deliberations. Noticing that a time frame had been fixed by it for completion of the selection process for appointment to the aforementioned post, it permitted the Commissioner and Secretary to the Government of Assam, Environment and Forest Department (hereafter referred to as the ''department'') to discharge the duties thereof in the interregnum.

The selection was accordingly held on 18.8.2007 where after the proceedings thereof were duly placed before the Court. Meanwhile, the pending writ petitions amongst others WP(C) No.3133/2007 having been laid before a Division Bench of this Court on the basis of orders to this effect, the same came up for consideration on 9.5.2008. Thereat it was submitted on behalf of the petitioner in WP(C) No. 3133/2007 i.e. Kalyan Shankar Chakraborty that he was not interested to pursue the matter and that he would be satisfied if the results of the selection process are kept in a sealed cover to be opened and placed on record. On a scrutiny of the selection process, it transpired that the Selection Committee had drawn up a list of two candidates namely the Respondent No.4 and the petitioner in that order of preference for appointment to the post of Member Secretary of the Board. Taking note of the submission made on behalf of the State Government that it was willing to appoint the person assessed to be the best by the Selection committee, the Division Bench of this Court by order dated 9.5.2008 observed that it hoped and trusted that the Government would appoint the respondent No.4 to the above post.

An application for review being Review petition No.54/2008 was preferred by the present writ petitioner against the said observation which, however, was rejected by the Division Bench on 29.5.2008. Being dissatisfied, the writ petitioner instituted Civil Special Leave petition being SLP(C) No.16584-16587/2008 against the orders dated 9.5.2008 and 29.5.2008 before the Hon''ble Supreme court. By its order dated 19.11.2008, the Apex Court dismissed the appeal observing however, that the same would not preclude the writ petitioner from challenging the appointment made in accordance with law. The petitioner is thus before this Court with a fresh assailment being equipped with this liberty on the ground that the recommendation of the Respondent no.4 has been in gross transgression of the criteria for selection contained in the letter dated 21.7.2007 issued by the Secretary to the Govt. of Assam, Environment and Forest Department in compliance of the directions to that effect vide the order dated 27.7.2007 passed by this Court in WP(C) No.3133/2007.

Having regard to the contour of the impugnment in the instant proceeding, it is not considered essential to dilate on the facts pertaining the other writ petitions accompanying WP (C) No.3133/2007 in details. As the petitioner''s representation dated 29.12.08 before the concerned departmental authority seeking redress failed to evoke any response and instead by order dated 24.4.09, the Respondent No.4 was appointed as the Member Secretary of the Board, he has approached this Court for judicial intervention.

The Board in its affidavit, while affirming the particulars of the service profile of the two contenders as set out in the writ petition has, in substance, averred that the petitioner had earned "Outstanding" grading in the ACRs for all the relevant three years. The Respondent No.4, it has asserted has no such grading to his credit during the relevant period. Instead, he has been awarded adverse remarks during those years. The details of the above has been set out by the Board as hereunder :-

Sl No. Name Period Grading/remarks by accepting authority.

Hemanta Kumar Gogoi i) 2.9.04 to 6.8.04

6.1.05 to ii) 31.12.05

iii) 1.1.06 to 27.7.07 A.M. i) Outstanding

ii)Outstanding

iii) Outstanding

Kamal Kumar Dutta i) 1.4.05 to 31.3.06

ii) 1.4.06 to 31.3.07 i)Very poor

ii) Not satisfactory

While admitting the receipt of the petitioner''s representation, the Board, however, has expressed its disinclination to act on it construing it to be inappropriate on its part to interfere with the recommendations of the Selection Committee.

The Respondent No.4 while substantially affirming the background of facts leading to the passing of the order dated 26.6.2007 has pleaded that after the initiation of the process, the Chairman of the Board on 31.7.2007 had forwarded the names of seven candidates along with the relevant service records to the Commissioner and Secretary to the Govt. of Assam, Environment and Forest Department for their assessment by the Selection Committee. In the said letter, it was inter alia mentioned about the pendency of a vigilance case against the writ petitioner. He being on deputation at the relevant years, his ACRs therefor were also not forwarded. According to the answering respondent, the writ petitioner is a named accused in ACB PS Case No. 14/2004 registered under Sections 120(B)/420/409/468 IPC in connection with which, he had meanwhile obtained an order of anticipatory bail from this Court. Asserting that the investigation of the said case is still proceeding, this respondent has questioned the correctness of the petitioner''s claim of having been graded ''Outstanding'' in the ACRs of the relevant years. He has maintained as well that he had never been communicated with any adverse remark in his ACRs for the last five years and more particularly for the years relevant for the selection. He has claimed to be better qualified than the writ petitioner and therefore, has endorsed his recommendation to be the best recommended candidate for the post. He has enumerated different areas of his achievements and excellence in service seeking to reinforce his claim of a better candidate. He has affirmed that pursuant to the notification dated 29.4.2009 issued by the Commissioner and Secretary to the Govt. of Assam, Environment and Forests Department appointing him as the Member-Secretary thereof, he had duly submitted his joining report on 30.4.2009 which was also accepted by the appropriate authority.

The petitioner, in his affidavit-in-reply while reiterating his challenge to the selection process on the ground alluded herein above, has inter alia contended that the pendency of the investigation in ACB PS Case No. 14/2004 per se is not a factor disqualifying him to be considered for the said post in the face of the office memorandum No.PLA(V) 36/2002/327 dated 19.3.2008 of the Political (Vigilance) Department of the Govt. of Assam clarifying that vigilance status vis-a-vis the officers due for promotion would be relevant only if prosecution on criminal charge against him is pending. According to the petitioner, as at all relevant times no such prosecution was pending against him, he was not ineligible to be considered for being promoted/appointed to the post involved. While disclosing his curriculum vitae as well to evince his worth for the post, he as well, has assert ed about the pendency of various enquiries against the Respondent No.4 rendering him unsuitable therefor.

The State Government has chosen to abstain from filing its counter.

Mr. Mishra has emphatically urged with reference to the minutes of the Selection Committee that it being apparent therefrom that it had failed to adhere to the norms prescribed for the selection, its recommendation preferring the Respondent No.4 over the petitioner is per se inoperative, null and void is liable to be adjudged as such. As the said minutes do not disclose any endeavour on the part of the Selection Committee to make its recommendation on the basis of the criteria " merit with due regard to seniority" on a scrutiny of the service records, it is non est in law. In absence of any semblance of consideration of the ACRs of the candidates for the relevant period, an essential determinant for judging their comparative suitability, the impugned recommendation is incurably illegal, he urged. The learned Senior counsel for the petitioner with reference to the pleadings of the parties, has pleaded that those as well endorse this cardinal failure of the Selection Committee invalidating its recommendations. He has therefore argued that in the facts and circumstances of the case, the impugned recommendation is liable to be declared non existent and inoperative in law and consequently the appointment of the Respondent No.4 to the post of Member-Secretary of the Board ought to be annulled.

Mr. Talukdar, learned State counsel has submitted that the Government as required had forwarded all relevant papers to the Selection Committee and on the completion of the process in terms of the recommendations made by it, the Respondent No.4 has been appointed to the post involved. The learned State counsel has produced the relevant official records for the perusal of this Court.

Mr. Goswami while abiding by the stand of the Board in its affidavit has refrained from offering any comment on the recommendation of the Selection Committee.

Mr. Dey, while admitting that the Respondent No.4 is junior to the petitioner in service, has insisted that having regard to the criteria involved for selection to the post of Member-Secretary of the Board i.e. "merit with due regard to the seniority", the Selection Committee on a consideration of all relevant aspects, having ascertained him (Respondent No.4) to be more meritorious and suitable for appointment recommended him to be appointed and as such, this Court in the exercise of its power of judicial review would not sit in appeal, unless the conclusion is perverse. As the recommendation of the Selection Committee on the basis of the materials on record bearing on the unsuitability of the candidates cannot be denounced as arbitrary being in disregard thereof, no interference therewith is called for, he urged. With reference to Rule 10 of the Assam Services (Confidential Rolls) Rules, 1990 (hereafter referred to as the ''Rules''), he has maintained that un-communicated adverse remarks in the ACRs of an employee cannot be taken note of while appraising his merit and suitability for any public post and thus the stand of the petitioner and the Board in this regard is wholly untenable and misconceived and therefore ought not to be taken cognizance of by this Court.

The competing pleadings and the arguments based thereon have been carefully attended to. The parties in the present adjudication are not in issue on the norms applicable for selection for appointment to the post of Member-Secretary of the Board. There is no wrangle at the Bar that in terms thereof, both the petitioner and the Respondent No.4 are eligible to be considered inconformity therewith. Neither any challenge to the composition of the Selection Committee nor any bias or malice as such has been attributed to it. The criteria for the selection for ready reference needs extraction:

" (ii) The Selection Committee will recommend selection on the basis of merit with due regard to seniority taking into consideration qualification, seniority and confidential rolls of the candidates for the last three years."

Obviously therefore, the enjoinment of the selection precepts ordain that the Committee would marshal ''merit with due regard to seniority by taking into account the qualification, seniority and confidential rolls for the relevant period of the candidates. The confidential rolls of the candidates for the last three years from before the date of selection therefore is an inseverable measure to evaluate the comparative suitability of the candidates for recommendation.

The projections in the Annual Confidential Reports of the petitioner and the Respondent No.4 as alluded herein above which stand affirmed by the disclosure from the official records placed at the disposal of this Court unfailingly demonstrate petitioner''s superior service profile over the Respondent No.4. The minutes of the Selection Committee held on 18.8.2007 recommending the Respondent No.4 and the writ petitioner in the panel in order of merit in the said order, however, does not clearly refer to any scrutiny of their respective Annual Confidential Reports for the period relevant. The recommendation as the minutes discloses had been on a consideration of the educational qualification, service experience, special knowledge, extra curricular activities, administrative skills etc. of the candidates. Though some of these aspects namely, service experience, special knowledge, extra curricular activities and administrative skills are otherwise traceable to the various inputs in the Annual Confidential Reports of the candidates with the state thereof as on date, the Committee ought to have been more transparent in objectivity and expression on the details of the scrutiny it made. This is more so, as the mark-sheets in the interview disclose columns of the above heads only on which the candidates have been appraised for final recommendation. As the ACRs of a candidate for the last three years assuredly is to have a definitive bearing on the ultimate analysis for eventual recommendation as mandated by the selection norms, in the estimate of this Court, the Committee had been cagey in omitting to refer to their conclusion on the relevant Annual Confidential Records. Though in the exercise of the powers of judicial review, this Court does not wield an appellate jurisdiction over the recommendations of the Selection Committee for appointment to a public post, interference therewith would be permissible if the same prima facie is not demonstrative of meticulous adherence to the formulated stipulations for selection. The ultimate recommendation of the Selection Committee in such a context though is expectedly subjective, the same to be sustained must essentially disclose traits of objectivity attuned to the selection edicts. The same is conspicuously missing in the instant case.

The pleaded stand of the Board proclaims in unequivocal terms that the Annual Confidential Reports of the candidates including that of the petitioner had been placed with the Selection Committee for consideration. It has also endorsed the entries in the ACRs of the writ petitioner and the Respondent No.4 as have emerged from the pleadings. Noticeably, neither the writ petitioner nor the Respondent No.4 disputes the pendency of the investigation of the ACB Case or, the enquiries against them respectively. The petitioner''s endeavour however, on the basis of the office memorandum dated 19.3.2008 of the Political (Vigilance) Department, Govt. of Assam has been to suggest that mere pendency of such investigation would not render him ineligible for the post. Be that as it may, as there is no material on record to proclaim that these aspects had been taken note of by the Selection Committee, any dilation in this regard is considered inessential.

The plea of non communication of the adverse remarks in the Annual Confidential Reports of the Respondent No.4 assumes significance at this juncture. None of the official respondents has volunteered to respond to this contention of the said respondent. The remarks contained in the ACRs of the Respondent No.4 for the period relevant and as referred to by the Board by any standard have to be construed as adverse, having regard to the yardstick of suitability prescribed. In view of the mandate of Rules 10, 11 and 12 of the Rules such adverse remarks in law ought not to be acted upon to the prejudice of the incumbent concerned without affording him an opportunity of representing against the same. In absence of any factual input in this regard, it is neither possible nor expedient to return a finding on this count. As a matter of fact, on a pointed query made by this Court in course of the hearing, the learned counsel for the official respondents could not furnish any answer thereto. It is not discernible as well from the minutes of the Selection Committee that it had opted to overlook the adverse remarks in the ACRs of the Respondent No.4 due to non communication thereof.

On a totality of the considerations as above, the recommendation of the Selection Committee as recorded in its meeting held on 18.8.2007 cannot be sustained and is interfered with. The official respondents are hereby directed to reenact the process on the basis of the criteria prescribed for such selection however, strictly in accordance with law, having regard to the determination made herein above. As the post involved is strategic in nature and does not admit of undue delay, for recruitment thereto, the exercise as directed should be completed within a period of one month from today. For this period of one month, the Commissioner and Secretary to the Govt. of Assam, Environment and Forests would attend to the duties relatable to the post of Member-Secretary, Pollution Control Board, Assam. Necessary consequential steps be taken forthwith. This decision, it is made clear, ought not to be construed to be recommending either the writ petitioner or the Respondent No.4 for the post involved.

The petition stands allowed in the above terms. No costs.