Ratan Gangopadhyay vs Union of India (UOI) and Others

Dipankar Datta, J.—The petitioner is the Container Terminal Manager of the Kolkata Port Trust (hereafter the Trust) since 20.2.1995. He challenges the process of selection leading to appointment of Sri Sanjoy Mukerji, respondent No. 7, as Chief Mechanical Engineer of the Trust. It is, however, not disputed at the bar that the respondent No. 7 on being selected and offered appointment in the post of Chief Mechanical Engineer of the Trust accepted such offer, joined the post and has since resigned with effect from 29.12.2008.

Notwithstanding such resignation, the petition would not fail for one of the contentions of the petitioner is that his candidature was not considered in the proper perspective. It was contended by Mr. Moitra, learned Senior Advocate representing the petitioner that remarks made against the petitioner, in the comparative statement/broad-sheet containing particulars of contenders for the post that was placed for consideration of the Selection Committee members, were unwarranted since ''direct recruitment'' was the method adopted for recruitment. He contended that the fact of pendency of disciplinary proceeding against the petitioner, which has not been concluded even today, ought not to have been included since it was irrelevant and the members of the Selection Committee must have been influenced thereby resulting in the petitioner not being found to be suitable.

The other ground of challenge is that the respondent No. 7 was not qualified to offer his candidature for the post of Chief Mechanical Engineer since he did not gain work experience while serving in a Major Port Trust/Government Department / Semi-Government Organization / Public Sector Undertaking/Autonomous Body. That apart, he lacked 15 years'' experience in a managerial capacity dealing with mechanical/electrical or marine engineering works in any of the organisations prescribed in the recruitment regulations, which was an essential requirement. He also lacked experience in a responsible position in Project Management and operation of Cargo Handling Equipment and Port Crafts, which was a desirable requirement.

Accordingly, the petitioner prayed for the following main relief:

a) Writ in the nature of Mandamus commanding the respondents to rescind and cancel the selection made on the basis of interview held on 14.12.2005 in favour of respondent No. 7 Shri Sanjoy Mukerji for the post of Chief Mechanical Engineer on the basis of the advertisement dated 30.10.05 with a last date of filing application as 21.11.2005 and further commanding the respondents to hold a fresh selection on the basis of inter se merit and experience of respondent candidates and to regulate the selection with the persons having no biasness as against the petitioner.

c) Writ in the nature of Certiorari commanding the respondents to produce before this Hon''ble Court all records relating to the present case including the records of Selection to the post of Chief Mechanical Engineer on the basis of interview held on 14.12.2005 and upon perusal of records conscionable justice may be rendered to the petitioner by quashing the panel prepared in course of selection held on 14th December, 2005 for the post of Chief Mechanical Engineer for Kolkata Port Trust and also to set aside the decision as communicated in the Daily Order Sheet of the Enquiring Officer dated 13.02.2006 on the subject "Appointment of Assisting Officer".

It may be recorded that Mr. Moitra in course of hearing submitted that prayer (b) of the petition praying for setting aside of the order dated 13.2.2006 of the Enquiry Officer pertaining to the pending disciplinary proceeding would not be pressed.

For the purpose of a decision on this petition it would be necessary to note notification dated 23.5.2002 issued by the Ministry of Shipping (Ports Wing) whereby the Central Government approved the Calcutta Port Trust (Recruitment of Heads of Department) Second Amendment Regulations, 2002 (hereafter the said regulations) made by the Board of Trustees for the Port of Calcutta as set out in the Schedule annexed thereto. The said regulations were to come into force on the date of publication in the Official Gazette.

The post of Chief Mechanical Engineer is one of the several posts included in the Schedule annexed to the said notification and provides the educational qualifications (both essential and desirable) and work experience required to be possessed by an aspirant for the same. The essential qualifications read thus:

Essential:

Educational:

Degree in Mechanical/Electrical/Naval Architecture from a recognized University or equivalent.

Experience:

15 years'' experience in a managerial capacity dealing with mechanical/electrical or marine engineering works in a Major Port Trust/Government Department/Semi-Government Organization /Public Sector Undertaking/Autonomous Body/ big Private Sector Unit.

Desirable:

Experience in a responsible position in Project Management and operation of Cargo Handling Equipment and Port Crafts, which was a desirable requirement.

It is further provided therein that the method of recruitment to the post of Chief Mechanical Engineer would be "by the composite method of Promotion/Transfer/Deputation of Officers from Major Ports failing which by transfer or deputation of Officers in Govt./Semi-Govt. Organization/Public Sector Undertakings or Autonomous Bodies failing which by direct recruitment.

The Selection Committee would comprise of (i) Chairman of the Trust, (ii) Joint Secretary (Port), Ministry of Surface Transport, and (iii) an officer having wide experience in the field as nominated by the Ministry of Transport.

It is not in dispute that steps taken by the Trust to fill up the post of Chief Mechanical Engineer by the methods of promotion/transfer/deputation of officers having failed, direct recruitment was resorted to. Incidentally, the petitioner was considered for promotion to the post of Chief Mechanical Engineer but was not found suitable. An advertisement was published in daily newspapers on 30.10.2005 inviting applications from eligible candidates indicating 21.11.2005 as the last date for submission thereof. It is further not in dispute that the said advertisements as well as the advertisement which was displayed on the website of the Trust did not indicate that 15 years experience in a managerial capacity dealing with mechanical/electrical or marine engineering works in a Trig Private Sector Unit'' would also be eligible to apply. According to Mr. Moitra, the respondent No. 7 had some experience of working in a managerial capacity of the required nature in Private Sector Units and, therefore, was not eligible.

Mr. Ghosh, learned Advocate representing the Trust admitted that the advertisements that were issued in the newspapers and the one that was displayed on the website did not contain the words ''big Private Sector Unit'' by mistake. The mistake went unnoticed till 31.10.2005. He, however, hastened to add that soon thereafter, the mistake was detected and the words Trig Private Sector Unit'' were inserted and displayed on the website on and from 31.10.2005 itself and, therefore, the grievance voiced by the petitioner that the respondent No. 7 was not eligible to offer himself for the post of Chief Mechanical Engineer having gained some experience while working in Public Sector Units is misconceived.

In the considered view of this Court, the qualifications required to be possessed by a contender for appointment in the post of Chief Mechanical Engineer having been prescribed by the said regulations framed in exercise of power conferred by the Major Port Trusts Act and the same having been duly gazetted on 23.5.2002, those qualifications alone are relevant and material for selection and not any eligibility criteria that might have been wrongly indicated in the advertisements. Moreover, having regard to the fact that the Trust had corrected the error committed by it immediately on its detection, this Court sees no reason to invalidate the selection of respondent No. 7 on the ground that his experience while working in Trig Private Sector Units'' should not have been counted. The first contention, therefore, fails.

In order to decide as to whether the respondent No. 7 did have the required length of 15 years experience and further as to whether the petitioner''s name was considered in the proper perspective, one has to look into the counter affidavit filed by the Union of India, respondent No. l.

However, prior to that, events leading to filing of such counter affidavit also requires to be noticed. Notice of the writ petition was served upon all the respondents on 8.3.2006/9.3.2006 and it was admitted on 15.3.2006. While directing that the appointment in the post of Chief Mechanical Engineer would abide by the result of the writ petition, six weeks time was given to the respondents to file counter affidavits. On 28.7.2006, it was noted by a learned Judge of this Court that no counter affidavit had been filed by the Trust "notwithstanding three dates having gone by". Time to file such affidavit was extended till 31.7.2006 failing which, it was recorded, "the right to do so shall stand cancelled". Counter affidavit was however filed on behalf of the Trust on 1.8.2006 which was accepted and taken on record. Counter affidavit filed on behalf of respondent No. 7 was also taken on record, subject to all just exceptions.

The writ petition was thereafter heard by the selfsame learned Judge on 8.8.2006, 23.8.2006, 31.8.2006, 29.11.2006 and 15.1.2007. On none of those occasions was the respondent No. l represented.

I had the occasion to take up the writ petition for consideration on 11.2.2009. On that date too, the respondent No. l was not represented. On the next date i.e. 12.2.2009, I directed service of further notice on the Senior Central Government Advocate as well as on Mr. Amal Kumar Mukhopadhyay, learned Advocate informing them that the Court is desirous of having a look into the records of selection and that the same may be made available on the following day, which was fixed for hearing.

The writ petition was taken up for further consideration on 20.2.2009. Mr. Mukhopadhyay appeared and prayed for time to produce the records of selection and on acceptance of his prayer, hearing was adjourned till 26.2.2009.

The writ petition was not considered on 26.2.2009. However, on 5.3.2009, the respondent No. l was given leave to place the records of selection on record by filing counter affidavit within 16.3.2009. The leave that was granted was not availed of. By order dated 19.3.2009, one last opportunity was granted to file counter affidavit by 9.4.2009. Ultimately, counter affidavit was filed by the respondent No. l on 23.4.2009.

This Court has looked into the contents of the said counter affidavit. It purports to include the minutes of the Selection Committee meeting held on 14.12.2005 for recommending a panel for appointment to the post of Chief Mechanical Engineer of the Trust, the comparative statement of candidates for such post, the application filed by the petitioner dated 18.11.2005 together with the documents enclosed by him, the application dated 18.11.2005 filed by one Subir Chakraborty, Deputy Chief Mechanical Engineer of the Trust and the application of the respondent No. 7 dated 14.11.2005.

The minutes of the Selection Committee records in paragraph 9 as follows:

Selection Committee after considering the service particulars, experience and performance during the interview recommend the following panel, in order of merit for appointment to the post of Chief Mechanical Engineer, Kolkata Port Trust subject to vigilance clearance and revival of the post, if need be. (i) Sh. Sanjoy Mukerji (Three Addl. Increments recommended keeping his qualifications in view), (ii) Sh. Subir Chakraborty.

The comparative statement of candidates, as annexed to the counter affidavit, consists of six pages. The respondent No. 7 is listed against serial No. 4 and his particulars find place at the bottom of the second page of the comparative statement (page 8 of the counter affidavit). The following page i.e. page 9 does not, however, contain the particulars of respondent No. 7 continued from the earlier page. As such, I am disabled to form any opinion as to whether the members of the Selection Committee were posted with impeachable facts in respect of his credentials or not.

Finding that the comparative statement as annexed to the counter affidavit is incomplete, I granted time to Mr. Mukhopadhyay to produce the records of Selection Committee proceedings in its entirety. However, he expressed his inability to produce the same for non-cooperation of his client.

I, therefore, have no other option but to draw adverse inference that certain materials considered by the members of the Selection Committee have been withheld deliberately, for, had the entire materials been produced, the same would have operated against the interests of all the respondents.

However, I do not intend to rest my conclusion in respect of alleged ineligibility of the respondent No. 7 to offer his candidature only by drawing adverse inference. I shall proceed to find out from the other documents on record as to whether on the date of consideration i.e. 14.12.2005, he did have 15 years experience of the required nature or not.

Mr. Ghosh and Mr. Mukhopadhyay contended in unison that the plea of respondent No. 7 being ineligible would be negated on a perusal of the bio-data. It demonstrates that he did in fact have the requisite work experience.

The counter affidavit of the respondent No. 7 is the basic document, which ought to reveal his credentials. Paragraphs 6 (d) and (e) of the said counter affidavit reflect the work experience of the respondent No. 7. To the extent relevant, it is set out below:

6(d) After successful completion of my Management Course I joined National Thermal Power Corporation Ltd., a Govt, of India Enterprise and worked in the said organisation from 25.4.1988 to 13.1.1995. From 21.1.1995 to 14.8.1996 I worked as Sr. Manager (Project Planning) in Ispat Industries Ltd. (formerly Nippon Denro Ispat Ltd.) from 21.1.1995 to 14.8.1996 and thereafter I joined Texmaco Ltd. as Chief Manager Stores and worked in the said post till 1.7.1998. I crave leave to refer the letters of appointment and the certificate granted by the Organisation at the time of hearing, e) On 16.04.2001 I was appointed as an Executive in BrahMos Pvt. Ltd., *******

In the said affidavit the respondent No. 7 has not claimed that he worked in managerial capacity dealing with mechanical/electrical or marine engineering works while he was serving National Thermal Power Corporation Ltd. between 25.4.1988 and 13.1.1995. It is also not revealed from the said affidavit that on and from 16.4.2001, being appointed as an executive in BrahMos Pvt. Ltd., he had worked in a managerial capacity.

It is at least clear on a bare perusal of the said affidavit of the respondent No. 7 that he did not have the requisite nature of work experience of 15 years.

Although the respondent No. 7 has not annexed the application filed by him in response to the advertisement inviting applications to his affidavit, I shall treat copy thereof, as annexed to the counter affidavit of the respondent No. l, as genuine. On perusal thereof, I find that the same hardly advances the claim of the respondent No. l that there was no illegality in the process of selection of the respondent No. 7 for the said post.

In his application, the respondent No. 7 indicated that he had worked as Senior Engineer/Deputy Manager in the Corporate Contracts Division of National Thermal Power Corporation Ltd. and was involved in works as follows:

Preparation of Contract/Bid Documents for Contract Packages funded by the World Bank/Domestic Competitive Building.

Monitoring of Contract Packages from Pre-award stage till award of contract

Preparation of System Circulars/Guidelines for bidding and contract procedure

Preparation of Package List and approval

Credit Monitoring

Project Co-ordination at Post award stage for Talcher Phase-1 (2x500MW)

Co-ordinating inspection and expediting materials from Calcutta for Talcher project

Close coordination with industries like Mcnellay Bharat, Voltas, WPIL, Mather & Piatt for Coal Handling, Air Conditioning, CW Pumps, Fire Fighting packages

Preparation of Progress Reports and attending meetings at site.

The works performed by him in the capacity of Senior Engineer and as Deputy Manager have not been categorized separately. It is not known whether the two posts are in the same grade and carry equal responsibilities or not. The Selection Committee members did not record anything of worth wherefrom their formation of opinion that the respondent No. 7 was duly qualified having the required work experience could be reflected. To the bare eyes, none of the works, as above, attended to by the respondent No. 7 appear to be related to acting in a managerial capacity in respect of mechanical/electrical or marine engineering works. I am conscious that it is impermissible for a Court of Writ to form a view on the issue as if it were the appellate authority. It must exercise the consideration of the Court as to whether the process of decision making suffers from any of the vices which are legally recognised as factors based whereon the Court''s interference would be warranted or not. The opinion that the respondent No. 7 fulfilled the eligibility criteria could not have been based on subjective satisfaction. In the absence of any indication in the minutes of selection, I consider it a failure on the part of the members of the Selection Committee to discharge their duties reasonably and fairly.

It further appears that during the period August, 1998 to June, 2001, the respondent No. l was employed by Usha Group, Calcutta. It does not appear that during this period any mechanical/electrical or marine engineering work in a managerial capacity was performed by the respondent No. 7.

If the work experience of the respondent No. 7 from April, 1988 to January, 1995 and then again between August, 1998 and June, 2001 are not reckoned for calculating his experience, he definitely falls short of the required length of experience. The proceedings of selection stand vitiated for non-application of reasonable standards of objectivity. The respondent No. 7 ought not to have been considered eligible. The contention that selection of the respondent No. 7 is unsustainable, thus, has to be upheld.

The last contention urged on behalf of the petitioner is weightier than the one directed against ineligibility of the respondent No. 7. I may place on record that learned Advocates representing the respondents did not advance any argument of worth on this point. For reasons recorded hereafter, I am inclined to hold that the petitioner was wronged.

The last column of the comparative statement, as against the petitioner''s name, contains the following remarks:

Eligible (departmental candidate. A disciplinary case is pending against him. He has also filed a writ application in Hon''ble Court, Kolkata praying inter alia for consideration of his candidature for the post of CME, KoPT. The Hon''ble Court has inter alia passed order on 23.11.05 that the Port Trust authorities shall consider him for recruitment in the post of Chief Mechanical Engineer in terms of the said notification and in his case the age bar shall not apply. The pending disciplinary case has to be disposed of preferably within six months. The writ petition has been disposed of.

It would appear from the Court''s order dated 23.11.2005 referred to in the remarks, extracted supra, that that writ petition was filed by the petitioner alleging that certain entries in the Annual Confidential Reports against him are not correct and that he had not been considered for the post of Chief Mechanical Engineer. The Court recorded the submission of Mr. Moloy Kumar Basu, learned Senior Advocate for the Trust to the effect that the petitioner''s candidature was considered but he was not found suitable for promotion; consequently the post of Chief Mechanical Engineer had been notified for direct recruitment and that the petitioner may apply in response to the notice inviting applications. While granting liberty to the petitioner to apply in response to the notice inviting applications by 25.11.2005 peremptorily, the Court observed that the petitioner''s candidature shall be considered by the authorities without applying the age bar. The Court declined to sit in appeal on the adverse entries made against the petitioner in the Annual Confidential Reports, but since it was reported that a representation made by the petitioner was pending, the Chairman of the Trust was directed to consider the same upon granting the petitioner opportunity of hearing within a month from date of communication of the order and to pass a reasoned order, which should also be communicated. Disciplinary proceeding that was pending against the petitioner was directed to be disposed of by the Trust as early as possible, preferably within six months. The further submission of Mr. Basu, learned Senior Advocate for the Trust was recorded which reads as follows:

Mr. Basu submits that in case of direct recruitment, question of consideration of Annual Confidential Reports does not arise at all.

True to the submission made before the Court on 23.11.2005, the adverse entries in the Annual Confidential Reports were not reflected in the comparative statement placed before the Selection Committee when it met on 14.12.2005. It is, however, on record that by an order dated 20.12.2005 passed by the Chairman of the Trust, the adverse entries had been directed to be expunged. However, despite direction to conclude the disciplinary proceeding against the petitioner as early as possible and preferably within six months, I have been informed that the disciplinary proceeding is still pending.

I have failed to comprehend as to why in the remarks column of the comparative statement, insofar as the petitioner is concerned, the fact of pendency of the disciplinary proceeding was indicated. If the adverse entries against the petitioner, being a departmental candidate, were not to be projected before the Selection Committee since the post of Chief Mechanical Engineer was sought to be filled up by direct recruitment, by applying the same analogy the fact that disciplinary proceeding was pending against him also ought not to have been indicated. I may record that nothing has been shown to me to support such indication. The Selection Committee, therefore, considered materials which were partly relevant and partly irrelevant and it is impossible to say to what extent the minds of the members of the Selection Committee were affected by the irrelevant material presented before it while it arrived at a finding that the petitioner was not suitable for the post of Chief Mechanical Engineer. The finding is therefore flawed and I am constrained to observe that the decision making process leading to rejection of the petitioner''s candidature and selection of the respondent No. 7 and the said Subir Chakraborty, in that order, suffers from gross error of law and unreasonableness.

In the result, the writ petition succeeds. A writ of certiorari is issued quashing the proceedings of the meeting of the Selection Committee held on 14.12.2005 in respect of filling up the post of Chief Mechanical Engineer of the Trust. The Selection Committee, by issuance of writ of Mandamus, is directed to proceed afresh on the basis of the relevant materials available as on 14.12.2005. Both the petitioner and the said Subir Chakraborty shall be considered along with all other eligible candidates. However, the remarks column pertaining to the petitioner, as in case of the other contenders, shall include the word ''eligible'' and the rest pertaining to pendency of the disciplinary proceeding shall be deleted there from. The exercise to reconsider the applications filed by the contenders for the post of Chief Mechanical Engineer shall be completed as early as possible, but not later than three months from date of receipt of a copy of this order. I have not found bias on the part of any of the members of the Selection Committee and, therefore, the prayer of the petitioner to have a Committee formed with unbiased members is rejected. However, it shall be open to the Central Government to reconstitute the Selection Committee if it so chooses. Any ad-hoc arrangement made by the Trust for discharging the duties and performing the functions of the post of Chief Mechanical Engineer shall cease once the post is filled up on the recommendation of the Selection Committee in terms of this order.

The writ petition along with all pending applications stand disposed of without order for costs.

Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant as early as possible.