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Judgment
S.S. Nijjar, C.J.—By this judgment we propose to dispose of appeals namely G.A. No. 3715 of 2006, APO No. 355 of 2006, W.P. No. 952 of 2006 and C.A.N. No. 6205 of 2007, M.A.T. No. 2440 of 2007, W.P. No. 23208 (W) of 2006, as both the appeals arise out of the same transaction and have been filed by the same appellant against the same selected candidate.
The appellant filed Writ Petition No. 952 of 2006 seeking a writ in the nature of mandamus, commanding the respondent No. 8 to recall, rescind, withdraw, cancel and/or set aside the recommendations in favour of respondent No. 8 for appointment as distributor of food grains at Neturia, Purulia. It was pleaded by the appellant that an advertisement �Annexure P-1� was issued by the respondent No. 6, District Controller, (Food & Supplies) (hereinafter referred to as DCF&S), inviting applications for appointment of distributor at Neturia. The petitioner had submitted the necessary applications for being considered for distributionship. Inquiry was held with regard to the suitability of the appellant on 16th of September, 17th of September and 18th of September, 2005 by the Sub-Divisional Control (Food & Supply) (hereinafter referred to as SCF&S), respondent No. 7, Raghunathpur. Respondent No. 8 had submitted similar application which had also been considered. In all, ten applicants were considered. Ultimately, a consolidated statement of facts was prepared based on the report of the inquiry into the applications. The Enquiry Officer recommended for rejection of seven applications of candidates at Serial Nos. 1 to 5, 8 and 9. The Enquiry Officer further recommended that appellant�s candidature be considered as preference No. 1 and that of respondent No. 8 be considered as preference No. 3. The details given in the consolidated statement with regard to the petitioner and respondent No. 8 are as under:
Sl. No.
Name of the Applicant with the name of the father/ husband.
Address
Location of the Godown with mention of the plot no. Khatian no., name of Mouza.
Nature of the Godown Pucca /Katcha
Storage Capacity & Suitability The Godow
Attendants
Financial Capacity of the Applicant
Remarks
6.
Sri Sanjay Shaw, son of Late Lokenath Show
Saltore Bazar P.O. Saltore, P.S. Neturie.
(A) Saltore Bazar Plot NO. 1368, Khatian NO. 354, Mouza Saltore. (B) On Barakar- Purulia Road, Plot NO. 2128 Khatian NO. 163, Mouza Sultandih P.S. Neturia.
(A) Pucca (B) Under Construction (Completion will require at least 2 months.
(A) 1000 Qts. At a time suitable. (B) Cannot be assessed.
Never convicted by the Court of Law as per affidavit sworn in by the appellant.
Rs. 24,51,051/-
The Godown marked as �A� is 1.1/2 K.M. away from the main road and the godown marked as �B� is under construction. However, on the ground of financial capacity may be considered for selection as preference no. 3.
10.
Sri Manish Kumar Agarwal Son of Sri Jagadish Prasad Agarwal.
Saltora Bazar P.O. Saltoree P.S. Bhaturia
On Saltore Main Road, Plot No. 890 Khatian no. 13 Mouza saltore P.S. Naturia
Pucca and recently constructed (100X40X25)
3000 Q1 at a time most suitable for the purpose.
No documents furnished.
Rs. 12,00,000/-
The proposed Godown is suitable for the purpose having parking facility and also for easy movement of Transport vehicles, loading & unloading of food grains shall be smooth. May be considered for selection as PREFERENCE No. 1.
This consolidated statement was forwarded by SCF&S to DCF&S in the form of an Inquiry Report on 28.11.2005. On consideration of the Inquiry Report DCF&S, recorded its own his assessment of the suitability of the different candidates, as follows:
Sl. No.
Name of the Applicant
Remarks
Recommendations
6.
Sanjay Shaw, S/o. Lt. Lokenath Shaw.
A local resident pucca godown having a storage capacity of more than 1,000 (one thousand) quintals. Besides, he owns another suitable godown at Sarbari Moor on Barakar, Purulia Road which is nearer to completion, have shown a cash balance of Rs. 24,51,051/- in his Bank Account, has experience of dealing in foodgrains. The godown is suit for the business of MR Distributorship.
Recommended by E.O. He may be considered for appointment since he is financially more solvent than all others and having a godown of adequate storage capacity.
10.
Shri Manish Kr. Agarwal, S/o. of Shri Jaddish Prasad Agarwal.
He has shown a balance of Rs. 12 lakhs in his Bank Account. The godown is pucca measuring 100� long. 40� wide and a height of 30� and most suitable for M.R Distributorship business. The godown is � k. m. away from Barakar � Purulia Road. He has an experience dealing in food grain business.
Strongly recommended by E.O. He has a suitable godown of adequate storage capacity providing all facilities for smooth loading, unloading and transportation.
After making the aforesaid assessment, respondent No. 6 observed as follows:
Remarks SANJAY SHAW S/o. Late Lokenath Shaw in the instant case may deserve merit over the other two recommended candidates taking into account the financial capability as well as the suitability of the godown he holds.
On the basis of the above assessment DCF&S forwarded the recommendations to the Director of District Distribution Procurement and Supplies (hereinafter referred to as DDDP&S). The Director observed as follows:
It appears after scrutiny of the comparative statement, the District Collector has finally recommended that Shri Sanjay Shaw, son of Late Lokenath Shaw, in the instant case, deserves merit over other two recommended candidates taking into account of the financial solvency and the suitability of the godown.
After perusal of the report I agree with the view of the Enquiring Officer and the D.C.F.&S., Purulia, I, therefore, recommended Shri Sanjay Shaw, son of Shri Lokenath Shaw, may be appointed as distributor at Neturia Block in Purulia District in respect of the said vacancy. Placed for approval.
Sd/- Illegible Director, D.D.P.&S, 24.12. 05.
Aggrieved by the aforesaid recommendations, the appellant served a legal notice through his Advocate on respondent Nos. 2, 3 and 4. The notice was sent on 3rd of July, 2006. Apparently, without waiting for a decision on the same, the petitioner filed writ petition No. 952 of 2006 challenging the alleged illegal action of the respondents in recommending the name of respondent No. 8 in preference to the appellant. Initially, the Writ Petition was disposed of by order dated 3rd of August, 2006. But, since the order had been passed in the absence of respondent No. 8, it was recalled by order dated 25th of August, 2006. After hearing counsel for the parties, the Writ Petition was disposed of by the Learned Single Judge by the same order. While disposing of the writ petition the Learned Single Judge had noticed the skeletal facts of the controversy raised in the Writ Petition and disposed of the Writ Petition with the following directions:
After having considered the merits of the writ application and the report of the Director as mentioned above, let the second respondent herein consider the above representation of the petitioner dated July 3, 2006, on its merits upon giving the petitioner a reasonable opportunity of hearing if such hearing is found to be necessary by the second respondent the decision taken on the basis of such consideration shall be communicated to the writ petitioner within two weeks from the date of the decision. If the second respondent decides to entertain the representation or the prayer made in such representation, in that event, no elaborate reasons in support of his decision need be given by the second respondent. The consideration by the second respondent be made within a period of four weeks from the date of communication of this order.
It is made clear that the direction passed herein shall not in any way prejudice the case of Sanjay Shaw whose case has already been recommended or accepted, as the case may be.
The writ petition is, thus, disposed of as above. There will be no order as to costs.
All parties concerned are to act on a xerox signed copy of the minutes of this order on the usual undertaking.
Sd/- Maharaj Sinha, J.
Aggrieved by the observation that the consideration of the representation of the appellant shall not, in any way, prejudice the case of Sanjay Shaw, the Letters Patent Appeal (A.P.O. No. 355 of 2006) has been filed.
Pursuant to the orders passed by Justice Maharaj Sinha, the Director General (Food) and Principal Secretary F&S Department (hereinafter referred to as DG) took up for consideration the representation of the appellant. The appellant appeared before the Director General. He was heard at length. After going through the entire record and after consideration of the submission of the petitioner, the Director General has rejected the representation of the petitioner by order dated 25.9.2006. The Director General has summed up the entire position as follows:
Now having gone through the records and with regard to the submissions of the petitioner what I find is as follows:
(1) A vacancy for appointment of one new M.R Distributor at Neturia, Purulia was published in the local newspaper by the District Controller F&S, Purulia 15th August, 2005 with the approval of the F&S Department.
(2) As many as ten applicants including the petitioner applied against such notice and enquiry into the applications was conducted by the Sub-Divisional Controller, F&S, Raghunathpur, based on his enquiry recommended three candidatures, namely, Shri Manish Agarwal, Shri Biswnath Shaw and Shri Sanjay Shaw for consideration by the higher authority against one vacancy. Accordingly, he forwarded all necessary reports, documents etc. to the District Collector, F&S, Purulia on 30.9.2005 for further perusal and consideration.
(3) The District Collector, F&S, Purulia on examination of the enquiry report and other connected documents observed that out of the aforesaid three applicants, the candidature of Mr. Sanjay Shaw was the most suitable in consideration of suitability of godown and financial solvency as well land forwarded the records to the Director of District, Distribution Procurement and Supply, F&S Department, on 28.11.2005, inter alia recommending the candidature of Shri Sanjay Shaw for appointment of an M.R. Distributor at Neturia.
(4) The Director of D.D.P&S on receipt of records from the D.C.F&S, Purulia, examined the records and uphold the recommendation of the D.C.F&S, Purulia and forwarded the records to the Food & Supplies Department for according approval in terms of his proposal dated 14.12.2005.
(5) That the Food & Supplies Department has not yet taken any decision in terms of the proposal of the Director, D.D.P&S dated 14.12.2005 for selection of Shri Sanjay Shaw for such appointment in view of fact that an interim order of injunction passed by the Hon�ble High Court, Calcutta is still continuing in W.P. No. 15983 (W) of 2005. Hence, no appointment order is issued till vacating of the interim order of injunction passed by the Hon�ble High Court, Calcutta.
Now on examination of records I find that vacancy was notified at Neturia for appointment of one M.R. Distributor and hence only one person may be accommodate against that vacancy. I also find on examination of records that one Mr. Sanjay Shaw is eligible in all respects for such appointment and both the District Controller F&S, Purulia and the Director of D.D.P.&S have taken right decisions by recommending the name of one Mr. Sanjay Shaw for such appointment.
Now, on consideration of all the above aspects, I am of the opinion that the representation made by Shri Manish Kr. Agarwal has no merit for selection and accordingly his prayer is considered and rejected on the aforesaid grounds.
This order was under challenge in W.P. No. 23208 (W) of 2006 which has been dismissed by the Learned Single Judge, Justice Patherya, by judgment dated 27th June, 2007. This judgment has been challenged in M.A.T. No. 2440 of 2007. The Learned Single Judge has held that Director General (Food), after examination of the records upheld the decision of the District Controller (F & S) and Director DDP&S. The Director General has clearly come to the conclusion that the appellant does not merit selection and has given reasons for rejecting the representation. In any event, since the appeal from the order of Justice Maharaj Sinha is pending in A.P.O. NO. 355 of 2006, it would not be right to go into the question of the correctness of the order dated 24th of December, 2005 passed by the DDDP&S as it will render the appeal infructuous. It has, however, been held that the ratio of the decisions cited by the petitioner is not applicable to the facts of the case. Therefore, order dated 25th of September, 2006 has been upheld and the Writ Petition has been dismissed.
It is in these circumstances that both the appeals are taken up for consideration together. We may first consider the submissions of the learned Counsel with regard to A.P.O. No. 355 of 2006. Mr. Panja submits that Learned Single Judge committed an error of law by directing respondent No. 2. The Secretary (Food & Supplies) on the one hand to consider the representation of the appellant on merits and on the other issuing a direction that the aforesaid should not, in any way, prejudice the case of respondent No. 8 whose case had already been recommended or accepted, as the case may be. The first Part of the direction is in conflict with the second part. Therefore, it cannot be implemented. We are unable to accept the aforesaid submission of the Learned Single Judge. In our opinion, the subsequent observation of the Learned Single Judge was merely clarificatory of the position that the suitability of respondent No. 8 is not subject to any further scrutiny. The direction cannot be interpreted to mean that the Secretary (Food & Supplies) had been precluded from issuing the appointment order to the appellant in case upon reconsideration his merit was found to be above that of the respondent No. 8. Mr. Panja had, thereafter, submitted that the Learned Single Judge ought to have decided the Writ Petition on merits. We are unable to accept the aforesaid submission. A perusal of the judgment of the Learned Single Judge would clearly show that the direction for reconsideration of the representation of the appellant was given upon a submission made by the learned Counsel for the appellant seeking a direction to the Secretary, Food & Supplies Department, West Bengal to consider the representation within a specified time. In the face of the aforesaid submission, we are unable to accept the submission of Mr. Panja that the Learned Single Judge ought to have decided the controversy on merits.
We may now take up Appeal (CAN No. 6205 of 2007) and M.A.T. No. 2440 of 2007 for consideration. A perusal of the grounds of appeal would clearly show that even though the Appeal (A.P.O. No. 355 of 2006) was pending against the judgment of the Learned Single Judge, the same grounds have been raised in this appeal also.
Justice Patheria has also not considered the submissions of the appellant on merits with reference to Clause 23 of the Public Distribution System (Maintenance and Control) Order, 2003. Mr. Panja, learned senior counsel for the appellant, submits that the procedure as prescribed under Clause 23, has not been considered in adjudicating the suitability of the candidates. According to the learned Counsel, the candidates of the appellant having been recommended by the Enquiry Officer, i.e. Sub-Divisional Controller (Food & Supplies) could not be ignored. Under Clause 23(ii), the Sub-Divisional Controller (Food and Supplies), had made the inquiry and submitted the necessary recommendations. The inter se merit of the appellant and respondent No. 8 had been duly calculated. Appellant had been placed at Preference No. 1 and respondent No. 8 had been placed at Preference No. 3. The recommendation was duly submitted to the District Controller (F & S) who recommended the claim of respondent No. 8 over the appellant and the other candidates merely by taking into account the financial capability. This illegality has been perpetuated by the DDP&S who has been clearly influenced by the recommendation made by the District Controller (F & S). However, while accepting the recommendation of the District Controller (F & S), the DDP&S observed that he agreed with the view of the Enquiring Officer and the District Controller. Since the Enquiry Officer had placed the appellant at Preference No. 1 and the Controller had shown a preference for respondent No. 8, the Director could not have agreed with both. This would, therefore, clearly mean that, in fact, the Director had disagreed with the Enquiring Officer. In such circumstances, in view of Clause 23(iii) of the control order, there was no option with the Director but to arrange for a fresh inquiry. This not having been done the entire process of selection has been vitiated. Learned Counsel submitted that when a statue provides that a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods or performance are necessarily forbidden. In support of the submission, the learned Counsel has relied on a judgment in the case of Ramchandra Keshav Adke (Dead) by Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, . Learned Counsel, thereafter, submitted that although the appellant may not be able to challenge the merits of the decision taken, he can certainly seek judicial review of the decision making process to examine the propriety of the decision making process. In support of his submission the learned Counsel has relied on the judgment of the Supreme Court in the case of Tata Cellular Vs. Union of India, .
Learned Counsel further submitted that the candidature of the appellant could not have rejected merely on the ground that the respondent No. 8 has superior financial capability. There was no minimum amount laid down in the advertisement with regard to financial capacity of a candidate. The requirements in response to which the applicant applied were as follows:
Be it mentioned here that proof of citizenship, resident of locality, ownership of suitable godown for storage of food grains, and necessary financial solvency must be submitted.
According to the learned Senior Advocate, the suitability of the candidate had to be judged by taking into consideration the entire existing infrastructure of each candidate. The Enquiry Officer, SCF&S, had clearly placed the appellant at Preference No. 1 by taking into consideration the nature of the godown possessed by the candidates as well as the financial capacity of the applicants. This conclusion has been ignored by the DCF&S without any cogent reasons. Learned Counsel submits that the decision is, therefore, clearly arbitrary and violates Article 14 of the Constitution of India.
On the other hand, Mr. Behani, learned Counsel appearing for the respondent No. 8, submitted that both the appeals are not maintainable. The procedure prescribed under the control order has been meticulously followed. According to the learned Counsel, the Director General has correctly observed that he agrees with the Enquiry Report as also the recommendations of the District Controller. The Enquiry Officer, SCF&S is required to conduct an inquiry under Clause 23(ii). Under this Clause the Enquiring Officer is only entitled to make comments with regard to the eligibility of the candidates. He has no power or jurisdiction to calculate the inter se merit of the candidates. The Enquiry Report made under Clause 23 (ii) is to be forwarded to the District Controller who is required to forward the same to the Director along with the recommendations. On receipt of the recommendations of the District Controller, the Director is required to examine the entire matter. In case the Director disagrees either with the Enquiry Report or with the recommendations of the DCF&S, a fresh inquiry is required to be conducted. In the present case, there was no disagreement with the Enquiry Report. The Enquiring Officer had rejected the candidature of seven candidates and found that three of the candidates fulfilled the necessary eligibility criteria. However, the Enquiring Officer had also, without jurisdiction, made comments on the inter se suitability of the three candidates who had been found eligible. This inter se suitability was not accepted by the District Controller who had placed respondent No. 8 above the other two candidates. Therefore, the Director correctly observed that he is in agreement with the Enquiry Officer with regard to the rejection of the candidature of seven candidates and the recommendations of the District Controller with regard to two candidates out of the three. The procedure having been duly followed, the judgment cited by the learned Counsel in the case of Ramchandra Keshave (supra) would not be applicable. Learned Counsel also submitted that since there is no defect in the decision making process, the observation in the case of Tata Cellular (supra) would also not be applicable. Additionally, the learned senior counsel submitted that the inter se merit of the candidates having been determined by the competent authority, this Court would not entertain the submission that the candidature of the appellant ought to have been accepted as he was superior in merit. In support of the submission the learned Counsel relies on a number of judgments of the Supreme Court which are as under:
(1) Dalpat Abasaheb Solunke and Others Vs. Dr. B.S. Mahajan and Others, ;
(2) (1990) 2 SCR 84 (Neelima Misra v. Harinder Kaur Paintal) ;
(3) S. L. Soni v. State of M.P. and Anr. 1995 Supp. (3) SCC 156;
(4) Durga Devi and another Vs. State of H.P. and others, .
Mr. Indrajit Sarkar, learned Counsel appearing for the State, has submitted that the petitioner had invited the order dated 25th of August, 2006 in W.P. No. 952 of 2006. Pursuant to the aforesaid order, the matter was considered by the Director General and the impugned order was passed on 25th of September, 2006. Therefore, the appellant cannot now be heard to say that the due procedure was not followed. Learned Counsel also submitted that the procedure prescribed under the Control Order has been meticulously observed. The Writ Petition is an abuse of the process of Court and, therefore, deserves to be dismissed. In reply, Mr. Panja has submitted that the Director, DDP&S could not have agreed and disagreed at the same time. He did not say that he agrees with the Enquiring Officer with regard to the rejection of candidature of seven candidates and disagrees with regard to the assessment of the three candidates and the appellant having been put at Preference No. 1. He is either to agree or disagree. Since, there was a disagreement between the Enquiring Authority as well as the District Controller, the Director could not have agreed with both at the same time. Therefore, inquiry as envisaged under Clause 23(iii) was clearly required. Learned Counsel further submitted that the whole procedure is arbitrary as no guidelines have been laid down as to what is suitable godown space and financial capacity. Therefore, the whole procedure being arbitrary, the selection is clearly vitiated. In support of his submission learned Counsel has relied on a decision of the Supreme Court in the case of Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, .
We have considered the submissions made by the learned Counsel.
It is undoubtedly true that Justice Maharaj Sinha had not gone into the merits of the controversy involved but this was done specifically on the request of the counsel for the petitioner who had submitted that a direction ought to be issued to the Secretary (Food and Supplies), respondent No. 2, to consider the representation made by the petitioner within a specified period of time. That being the position, the judgment of Justice Maharaj Sinha cannot be permitted to be challenged on the ground that the judgment ought to have been given on merits. We have already held that the direction given by Justice Maharaj Sinha merely directed that the candidature of respondent was not open for further scrutiny. The direction in no manner prevented the Director General from selecting the appellant. It must be remembered that a recommendation gives no indefeasible right to appointment. Therefore, till the final decision is made, either of the two candidates would have no legal right to claim appointment. The decision as to who is the most suitable candidate is to be made by the competent authority under the relevant Rules. It is not the function of the Court to make the selection by comparing the relative merit of the candidates. This is the settled position in law. It has been reiterated by the Supreme Court in a catena of judgments. We may now consider the judgments cited by Mr. Behani.
In the case of Dalpat Abasaheb Solunke and Ors. v. Dr. B.S. Mahajan and Ors., it has clearly been held as follows:
...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. it is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction.
The aforesaid ratio has been affirmed by the Supreme Court in all the cases that have been cited by Mr. Behani. In Durga Devi (supra) reiterating the same proposition, the Supreme Court observed as follows:
In the instant case, as would be seen from the perusal of the impugned order, the selection of the appellants has been quashed by the tribunal by itself scrutinizing the comparative merits of the candidates and fitness for the post as if the tribunal was sitting as an appellate authority over the Selection Committee. The selection of the candidates was not quashed on any other ground. The Tribunal fell in error in arrogating to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for appointment. That was the function of the Selection Committee. The observations of this Court in Dalpat Abasaheb Solunke case are squarely attracted to the facts of the present case. The order of the Tribunal under the circumstances cannot be sustained.
In the case of (1990) 2 SCR 84 (Neelima Misra v. Harinder Kaur Paintal) it was observed as follows:
It is not unimportant to point out that in matters of appointment in the academic field the court generally does not interfere. In the University of Mysore v. C.D. Govinda Rao, this Court observed that the courts should be slow to interfere with the opinion expressed by the experts in the absence of mala fide alleged against the experts. When appointments are based on recommendations of experts nominated by the Universities, the High Court has got only to see whether the appointment had contravened any statutory or binding rule or ordinance. The High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which the Chancellor has acted. See also the decisions in J.P. Kulshreshtha v. Chancellor, Allahabad University, Rajbhavan and Dalpat Abasaheb Solunke v. B.S. Mahajan.
Keeping in view the aforesaid principles we may now notice the legal provisions under which various Orders have been passed by different authorities at the appropriate stage of the proceedings.
Clauses 23(ii) and 23(iii) of the aforesaid control order as amended by Notification No. 7044-FS dated 18-11-2004 are as under:
23(ii) The applications having been received from the bona fide citizen of the state for appointment of Distributor against particular vacancy, SCFS shall enquire within two weeks from the last date of receipt of the applications and the report so prepared shall be sent with his comments to the concerned DCFS. The said DCFS will forward the same with his recommendation to the Dir DDP&S. The DDP&S after obtaining necessary approval from the Government shall arrange or empower any officer for issue of appointment letter together with licence in prescribed Form.
23 (iii). If the Dir DDP&S in any particular case does not agree with the enquiry report of SCFS or recommendations of DCFS, as the case may be, he shall arrange enquiry into the matter by any competent officer or by a team and thereafter shall forward the case with his comments to the Government for necessary approval.
A perusal of Clause 23 (ii) would clearly show that Sub-Divisional Controller (Food and Supplies) shall conduct an inquiry within two months and submit the report with his comments to the concerned District Controller. The Clause further provides that the District Controller shall forward the Enquiry Report together with his recommendations to the Director DDP&S. Thereafter, the Director DDP&S or any other Officer empowered by the Director shall issue the appointment letter to the successful candidates after obtaining approval from the State Government. There is no scope in interpreting the aforesaid Clause to mean that the Enquiring Officer would have the power to make an inter se selection about the relative merits of the candidates concerned. He is merely to send the Enquiry Report together with his comments. In the present case, the recommendation of the Enquiring Officer is clearly beyond jurisdiction. The Sub-Divisional Controller has no power to make an inter se assessment of the candidates. Therefore, the placement of the appellant at Preference No. 1 and respondent No. 8 at Preference No. 3 was wholly beyond the powers of the Enquiring Authority. Upon receipt of the Enquiry Report with the comments of the Enquiring Authority (SCF&S), the District Controller is required to forward the same with recommendations. Clearly, therefore, there is a distinction between the power of the SCF&S who is only to offer his comments in the Enquiry Report and the District Controller who is to forward the same with his recommendations. The two terms �comments� and �recommendations� are not synonymous with each other. It is the District Controller (Food and Supplies) who has to make the recommendations under Clause 23(ii). Under Clause 23(iii) Director DDP&S is required to examine the Enquiry Report as well as the recommendations of the DCF&S. In case of disagreement by the Director DDP&S with the Enquiry Report of the SCF&S or with the recommendations of the District Controller (F & S), a fresh enquiry is required to be conducted. In the present case, we are unable to hold that there has been any violation of the aforesaid procedure. The placement of the appellant at Preference No. 1 and respondent No. 8 at Preference No. 3 by the Enquiring Authority was clearly beyond jurisdiction. The District Controller had accepted the Enquiry Report with regard to the rejection of candidature of the seven candidates. The preference of the appellant at No. 1 was not accepted. This is evident from the fact that the District Controller had clearly stated that respondent No. 8 deserves merit over the other two recommended candidates taking into account the financial capability as well as the suitability of the godown he holds. It was in these circumstances that the Director agreed with the Enquiry Report as also with the recommendations of the District Controller. Therefore, it cannot be accepted that there was a clear cut disagreement by the Director with the Enquiry Report. We are also of the considered opinion that the petitioner having invited the order dated 25th of August, 2006 in W. P. No. 952 of 2006 cannot now be permitted to claim that the due procedure was not observed. Pursuant to the order passed by this Court on 25th of August, 2006, the Director General (Food) and Principal Secretary, Food and Supplies Department, considered the representation. The appellant was duly heard and his submissions have been duly considered. The appellant only submitted that his candidature was better than that of respondent No. 8. This submission of the appellant was rejected by the Director General after due examination of the records. The Director General has clearly observed that the Director DDP&S has correctly recommended the name of respondent No. 8. The matter having been considered by the appropriate Authority, it cannot be said that the decision is either arbitrary or not in accordance with the statutory provisions.
In view of the above, we are of the considered opinion that the observations made by the Supreme Court in the case of Tata Cellular (supra) have been fully complied with by the respondent. In the aforesaid judgment it has been observed by the Supreme Court as follows:
Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision making process itself.
In Chief Constable of the North Wales Police v. Evans Lord Brightman said:
Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.
* * * Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.
In the same case Lord Hailsham commented on the purpose of the remedy by way of judicial review under RSC, Ord. 53 in the following terms:
The remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range or authorities, judicial, quasi-judicial, and as would originally have been thought when I first practiced at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner (p.1160).
In R. v. Panel on Take-over and Mergers, ex p Datafin Plc, Sir John Donaldson, M.R. Commented:
An application for judicial review is not an appeal.
In Lonrho plc v. Secretary of State for Trade and Industry, Lord Keith said:
Judicial review is a protection and not a weapon.
It is thus different from an appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. In Amin, Re, Lord Fraser observed that:
Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made�. Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.
The duty of the Court is to confine itself to the question of legality. Its concern should be:
Whether a decision-making authority exceeded its powers?
Committed an error of law,
Committed a breach of the rules of natural justice,
Reached a decision which no reasonable tribunal would have reached or,
Abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, �consider whether something has gone wrong of a nature and degree which requires its intervention.
In our opinion, in the present case, the aforesaid principles have been fully complied with by the respondents.
For the reasons stated above we find no merit in the appeals.
Both the appeals are hereby dismissed.
There will be no order as to costs.
Tapen Sen, J.
I agree.