Departmental Enquiry
Issuance of - Competent authority - Held, charge-sheet was issued by Chairman of Nigam who was the disciplinary
authority - Hence, contention that since charge-sheet was not issued by competent authority, no cognizance on basis
thereof could be taken, rejected - Further held, Respondent 4 ought to have replied to charge-sheet and could not have
decided for himself that since according to him it was not issued by competent authority, he could ignore same,
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7706 OF 2013
(Arising out of SLP(C) No.30361/2012)
BHAJAN SINGH Appellant(s)
:VERSUS:
STATE OF UTTARAKHAND & ORS. Respondent(s)
H.L. Gokhale, J.
Dated;August 27, 2013.
Citation; (2013) 14 SCC 32
Leave granted.
2. This appeal by special leave seeks to
challenge the judgment and order dated 9.8.2012
rendered by a Division Bench of the Uttarakhand High
Court dismissing Writ Petition (S/B) No.153 of 2012.
That writ petition was filed by the appellant herein
seeking to challenge the appointment of respondent
No.4 herein to the post of Managing Director of the
Uttarakhand Peyjal Sanshadhan Vikas Avam Nirman
Nigam (“Nigam” for short). There were various
prayers in the writ petition. Prayer (A) was to call
2
for the record of the selection proceedings and
recommendations of the Selection Committee
constituted on 2.5.2012 by the Government of
Uttarakhand for selection to the post of Managing
Director and after examining the legality and
validity of selection process, recommendations to
quash these recommendations. Prayer (B) challenged
repatriation of the appellant to the post of Chief
Engineer which was his substantive post from his
officiating position of Managing Director. Prayer
(C) essentially sought consideration of the
appellant for the post of Managing Director, if
found fit for the said post.
3. The facts leading to this appeal are this
wise - The appellant as well as respondent No.4 both
joined as Assistant Engineers in the Respondent No.2
Nigam. The appellant joined sometimes in 1984
whereas respondent No.4 joined in 1977. Over the
years, they have risen in rank and the appellant,
who belongs to a Scheduled Caste, became
Superintending Engineer on 4.7.2002 whereas
respondent No.4 came to that position on 2.7.2008.
Subsequently the appellant became Chief Engineer on
3
8.2.2005 which post he is presently continuing to
occupy. As far as respondent No.4 is concerned, he
came in that position on 20.1.2011. He could become
Managing Director on 3.5.2012 pursuant to the
Departmental Promotion Committee’s decision. The
appellant was officiating as the Managing Director
at the relevant time, he was amongst the officers
who were considered for promotion and it is his case
that he deserved to be selected and not the
respondent No.4.
4. The challenge to the appointment of
respondent No.4 is two-fold. Firstly that under the
relevant rules regarding the consideration for
promotion to the post of Managing Director, minimum
8 years of service as Chief Engineer is required,
which respondent No.4 did not have. It is also
pointed out that respondent No.4 came in the
position of Superintending Engineer much after the
appellant became Chief Engineer. This being the
position, the submission is that respondent No.4 was
not eligible for being considered for the post of
Managing Director.
4
5. Be that as it may, the second challenge to
the appointment of respondent No.4 was to the manner
and merits of the selection of respondent No.4 for
the post of Managing Director and in our view, this
is a much more basic objection which we must look
into. There are rules framed for the appointment to
the post of Managing Director known as the
Uttarakhand Peyjal Sanshadhan Vikas Avam Nirman
Nigam (The Post of the Managing Director) Rules,
2011. They are framed under Section 96 read with
sub-section (2-A) of Section 4 of the Uttar Pradesh
Water Supply and Sewerage Act as applicable to the
State of Uttarakhand. Rule 3 of these rules provides
that the selection to the post of Managing Director
shall be made through a Selection Committee which
will comprise of 5 persons, namely:
(a) Chief Secretary to the State Government
(b) Principal Secretary/Secretary to the
State Government in the Water Supply Department
(c) Principal Secretary to the State Government
in
the Public Enterprises Department
(d) Principal Secretary/Secretary to the
State Government in the Personnel Department
(e) An expert nominated by the Chief Secretary
to
5
the State Government.
6. These Rules also provide for an officer
belonging to the Scheduled Castes or other backward
classes of citizens, nominated by the Chief
Secretary to be on the Committee if the officers
referred to in clauses (a) to (e) do not belong to
any Scheduled Caste or other backward classes. Rule
4 of these Rules provides that only those Engineers
of the Nigam shall be eligible for selection to the
post of Managing Director who, amongst others, as
per sub-clause (3) are holding the post of Chief
Engineer Level-II in the Nigam and have completed at
least 25 years of continuous service as Assistant
Engineer, Executive Engineer, Superintending
Engineer and Chief Engineer Level-II in the Nigam.
7. It is Rule 5 of these rules which is more
relevant as far as this case is concerned. This Rule
reads as follows:
“5(1) Selection for appointment to the
post of the Managing Director of the
Nigam shall be made on the basis of
merit.
(2) The ‘Merit’ shall be assessed mainly
on the basis of integrity of the officer,
6
leadership qualities and capability to
take quick decision, technical knowledge
of the subject, special
achievements/contribution and capacity to
execute the work easily like qualities.
Entries in the Annual Character Roll
special entries, other records available
in the personal file and other facts
brought to the notice of the Departmental
Promotion Committee shall be considered
for the purpose.
(3) The Principal Secretary/Secretary to
the State Government in the Drinking
Water Department shall prepare a list of
eligible person and place it before the
selection committee referred to in Rule
3, along with their character rolls and
other records pertaining to them.
(4) The Selection Committee shall
consider the cases of eligible persons on
the basis of the character rolls for ten
years immediately preceding the year in
which the selection is made and other
records, referred to in sub-rule (2).
(5) Annual entries of at least 08 years
out of the last ten years entries during
the period of service on the post just
below the promotional post must be
available.
(6) For the purpose of assessment of the
annual entries of the character rolls,
the entries of the entire service period
of the officers shall be taken into
consideration, however, the entries of
the last 10 years shall be given special
consideration. The entries shall be
categorized as ‘Outstanding’, ‘Very
Good’, ‘Good’, Fair/Satisfactory and
‘Adverse’. For entries of 12 months 10
marks for ‘Outstanding’, 08 marks for
‘Very Good’, 5 marks for ‘Good’, zero
marks for ‘satisfactory/fair’ and 05
negative marks for ‘adverse’ entry shall
be awarded. The marks obtained for the
period less than 12 months shall be
deducted from the total marks of months
for which the entries are assessed, in
7
the ratio of 12. The average monthly
marks shall obtained by total number of
months (the entries of which are
assessed) and by multiplying the same by
12 average annual marks shall be
obtained. The Officer securing more than
08 average annual marks shall be
considered fit for selection on the basis
of merit. Senior most in the cadre
amongst the persons who are considered
fit for selection shall be recommended
for appointment against the post.
(7) The name of the candidate, whose even
one out of he two entries immediately
before the year of selection is adverse
or whose integrity during the last five
years preceding the year of selection is
doubtful in the annual confidential entry
or by special adverse entry, shall not be
considered.
(8) If in selection on merit, any
candidate has been pushed down, he/she
shall be informed that he/she has been
recommended on account of nonavailability
of post or being classified
under ‘Unfit’ category for promotion, as
the case may be.”
8. It was submitted on behalf of the appellant
before the High Court that three charge-sheets were
pending against respondent No.4, and the pendency of
the charge-sheets was certainly a factor which had
to be considered while deciding the merit of
respondent No.4. This was an aspect which was
required to be placed before the concerned Selection
Committee which was to decide the promotion to the
post of Managing Director.
8
9. It was pointed out that the first chargesheet
was framed on 5.12.2011 which contained three
serious charges with respect to the irregularities
committed by the respondent No.4 as the Member
Secretary of the Zonal Tender Committee when he was
the Executive Engineer in the Construction Division,
Pauri, during 1.6.1995 to 19.7.2007. Charge No.1
thereof alleged of not complying with the
departmental procedure for deciding the tenders
concerning the work of laying and jointing of
pipelines and appurtenant works from Nanghat source
to Molthaghat under Nanghat Potable Water Supply
Scheme, resulting into avoidable delay in reaching
the benefits of the scheme to the general public.
Charge No.2 was regarding the procedure for
inviting, opening and acceptance of the tenders and
non-compliance thereof requiring re-tendering,
concerning the same Nanghat Potable Water Supply
Scheme, resulting into cost over-run and time overrun.
Charge No.3 was regarding the manner in which
the technical bids were decided concerning the said
Scheme, ultimately resulting into loss of Rs.49.17
lacs to the Nigam and benefiting the contractors.
9
These objections were raised in the Audit Report of
2008-2009 and accepted by the Accountant General.
This charge-sheet called upon the respondent No.4 to
inform the undersigning Inquiry Officer in writing
whether he wanted to examine or cross-examine any
witness. Evidences in support of the charges were
mentioned along with the charges. The charge-sheet
also required the respondent No.4 to submit written
statement. The charge-sheet was signed by the
Inquiry Officer for and on behalf of the Nigam, and
was approved by the Chairman of the said Nigam,
whose approval and signatures are also to be seen by
the side of the signatures of the Inquiry Officer.
10. It is material to note that no reply was
filed to this charge-sheet by respondent No.4. The
Selection Committee met on 2.5.20012 and respondent
No.4 was recommended for being appointed by its
recommendation dated 3.5.2012. It was specifically
mentioned in paragraph 4 of the writ petition that
the second charge-sheet was dated 3.3.2012
concerning the working of respondent No.4 during the
period 18.9.2000 to 19.7.2007 in respect of Birokhal
Group of Villages Pumping Water Supply Scheme and
10
the third charge-sheet dated 9.4.2012 was concerning
the scheme of utilization of sewage for irrigation
purpose for the Veer Chander Singh Garhwali Audyogik
University during 18.11.2000 to 30.6.2007. The
submission on behalf of the appellant was that this
material, namely, that the charge-sheets were
pending against respondent No.4, was not placed
before the Selection Committee at all. There is no
dispute, whatsoever, that respondent No.4 had not
replied to the charge-sheets nor with respect to the
fact that pendency of the charge-sheets against
respondent No.4, was not brought to the notice of
the Selection Committee. The Division Bench of the
High Court has given importance only to the aspect
of seniority of the engineers concerned, and
although the issue with respect to the integrity of
the officer, to be appointed to the high position of
Managing Director, was raised in this writ petition
the same has been decided against all canons of
settled laws.
11. (i) Various affidavits were filed on behalf of
the respondents in the High Court. One Shri S. Raju,
S/o Shri S. Subbiah affirmed two affidavits on
11
26.6.2012. One affidavit he affirmed in his capacity
as Principal Secretary, Department of Pey Jal, on
behalf of Respondent No. 1 Government of Uttrakhand.
In paragraph 17 thereof he stated as follows:-
“17. That perusal of the letter dated
5.12.2011, 3.3.2012 and 9.4.2012 do not
mention that these letters have been issued,
or the alleged charge sheets with these
letters have been issued, under any
disciplinary proceedings. These letters do
not also mention that prior to issuance of
these letters at any point of time an
explanation from respondent No. 4 was called
for or any order of initiating disciplinary
proceeding was issued, as such the Principal
Secretary or the Government on receiving the
proposal came to the conclusion that the
said letters/alleged charge sheets cannot be
deemed to have initiated any disciplinary
proceeding against respondent No. 4 and
accordingly the same was not mentioned in
the note before the Selection Committee.”
The officer has sought to contend that these charge
sheets do not mention that they have been issued
under any disciplinary proceedings. By stating so
he has betrayed his ignorance of the legal position
that the disciplinary proceedings begin with the
issuance of the charge-sheet. He has further stated
that prior to issuance of the charge sheets no
explanation was called from respondent No. 4, nor
any order of initiating disciplinary proceedings was
issued. Now, this is a matter of the procedure to
12
be followed by the concerned authority while
initiating the disciplinary proceeding. In a given
case a show cause notice may be issued, prior to the
issuance of the charge sheets, but that is not the
rule. In any case, it is the Principal Secretary
of the Department who in his capacity as the
Chairman of the Nigam was the Disciplinary
Authority. He has counter signed on the charge
sheet. The affidavit is a miserable attempt to
explain as to why the charge sheets were not
mentioned in the note placed before the Selection
Committee by the then Secretary of the Department.
(ii) In another affidavit affirmed by him on the
same day in his capacity as the Chairman of the
Nigam, he stated in paragraph 4 thereof that he had
joined the duties on the present post on 1.5.2012,
and his predecessor in office at the relevant point
of time, was one Mr. Utpal Kumar Singh, IAS. In
paragraph 5 of this affidavit he stated that he had
gone through the concerned file and upon perusal of
the files it appeared to him that the three draft
charge sheets were prepared. He has further stated
that the three draft charge sheets were sent to the
13
then Chairman for approval by the petitioner, and
the then Chairman had approved the same and sent it
with his covering letter to respondent No. 4 for
calling his explanation before initiation of any
disciplinary proceeding in the matter. In paragraph
9 he specifically stated amongst others as follows:-
“9. ……The said charge sheets appear
to have been approved and sent by the
then Chairman to the respondent No. 4 for
calling his explanation before commencing
any disciplinary proceedings in the
matters. No Enquiry Officer has been
appointed in the matter till now.
Thus, in so many words, while explaining his own
position, he has contradicted the previous Secretary
through this affidavit. On reading these two
affidavits one thing is very clear that chargesheets
were approved by the then Chairman and
thereafter sent to the respondent No. 4 calling for
his explanation, though for the reasons best known
to the Nigam the disciplinary proceedings have not
proceeded thereafter.
(iii) As far as respondent No. 4 is concerned he
affirmed an affidavit in reply and amongst others
gave an explanation on the allegations contained in
14
three charge sheets. He has however not denied
having received these charge sheets. He has also
not stated that he has filed any reply to these
charge-sheets.
12. In paragraph 2 of the impugned judgment the
High Court noted the contention that under Rule 5 of
the Rules concerning appointment to the post of
Managing Director, the Selection Committee has to
look into the merit of the candidate concerned. It
also noted the contention on behalf of the appellant
that the Selection Committee was not in the know of
the three charge sheets, and it did not have the
appropriate opportunity to determine the integrity
of the selected candidate. In paragraph 3 of its
judgment however the Court observed that it is true
that if the selectors had looked into those charge
sheets, they may have reacted in some other manner.
At the same time the Court held that mere issuance
of a charge sheet does not affect integrity of an
employee of a statutory authority. Thereafter, the
court observed in paragraph 3:-
“3…. Law requires selectors to ignore
15
altogether a charge-sheet issued against
a Government employee in as much as, the
same bears only an accusation against him
and integrity of a person cannot be
questioned only on the basis of an
allegation or insinuation against him.
The Rules, it was not contended, debarred
consideration of a candidate for
promotion against whom a disciplinary
proceeding is pending.”
And then in paragraph 4 and 5 as follows:-
“4. We think that integrity of the
officer, to be looked at by the
selectors, is such integrity, which is
reflected in the records of the candidate
appearing before the selectors. Issuance
of a charge sheet may be reflected in the
record, but the substance of the chargesheet
cannot be treated as part of the
record. As aforesaid, mere issuance of a
charge-sheet does not prevent the
selectors from selecting a candidate
against whom the charge-sheet has been
issued.”
“5. We, accordingly, find no scope
of interference with the selection under
challenge merely on the basis that the
charge-sheets, thus issued, were not
placed before the selectors.”
13. Mr. Subba Rao, learned counsel for the
appellant submitted that these observations of the
High court were totally contrary to the law laid
down by this Court. If an employee is facing a
16
charge-sheet, and is called upon to give an
explanation, surely such an employee cannot be
considered for promotion at that stage. His claim
for promotion will have to be kept in sealed cover
as held by a bench of three Judges of this Court in
Union of India Vs. K.V. Jankiraman & Ors., reported
in (1991) 4 SCC 109. The present case is clearly
one of suppression of the relevant material and not
bringing it before the Selection Committee. This
made the selection of the respondent No. 4 still
more venerable. The view taken by the High Court is
totally untenable and the judgment had to be set
aside.
14. On the other hand, it was submitted by Mr.
Ranjit Kumar, learned senior counsel appearing for
respondent No.4 that the submissions advanced in the
High Court were mainly with respect to the issue of
seniority. He contended that, in any case, the
charge-sheet dated 5.12.2011 was not issued by the
Disciplinary Authority and may not be taken
cognizance of. Now, as can be seen, it is the
Chairman who is the Disciplinary Authority, and the
charge-sheet bears the signatures of the Chairman
17
approving the charge-sheet. His signature is
appended side by side with the signature of the
Inquiry Officer, and therefore the submission has to
be rejected. It was further submitted that the
charge-sheet was a motivated document and it was an
attempt by the appellant herein to see to it that
respondent No.4’s career is damaged. It was pointed
out that the appellant himself was officiating as
Managing Director at the relevant time and,
therefore, he had chosen to rake up these
controversies at that very time.
15. It is not possible to accept this submission.
The charges in the charge-sheet are concerning the
period starting from 2006 onwards. Whatever was the
defence of respondent No.4, he ought to have replied
to the charge-sheet, and he could not have decided
it for himself that since according to him, the
charge-sheet was not issued by the Disciplinary
Authority, he was going to ignore the same. Nothing
prevented him from placing on record his view point
that the charge-sheets were motivated. That apart,
as is seen from the record, the Chairman of the
Nigam had signed on the charge-sheet approving the
18
same and it is, therefore, that the Inquiry Officer
had issued the charge-sheet. The Chairman of the
Nigam is the Secretary of the Water Supply
Department. He had taken some three months’ time
after the note was put up to him, to approve the
charge-sheet. He was also a Member of the Selection
Committee which consisted of 5 senior officers of
the State. It was surely expected of him to bring it
to the notice of the Selection Committee that
charge-sheets were pending against respondent No.4.
Respondent No.4 may have his defence on the merits
of the charges. All that we can say is that the fact
of pending charge-sheets ought to have been placed
before the Selection Committee. In the absence of
such a very vital material being placed before the
Selection Committee, the Committee went into the
aspect of determining the merit without having the
benefit of this vital material which was against
respondent No.4. If these charge-sheets were made
available to the Committee, it would have taken its
decision after considering the same, and the
principles laid down by this Court in Union of India
& Ors. Vs. K.V. Jankiraman & Ors., (supra) would
have squarely applied to respondent No.4’s case. His
19
claim for promotion would have been kept in a sealed
cover and he would have been asked to wait until the
enquiry was complete.
16. (i) As held in paragraph 29 in Jankiraman’s case
(supra):
“An employee has no right to promotion.
He has only a right to be considered for
promotion. The promotion to a post and
more so, to a selection post, depends
upon several circumstances. To qualify
for promotion the least that is expected
of an employee is to have an unblemished
record. That is the minimum expected to
ensure a clean and efficient
administration and to protect the public
interest.”
(ii) On the sealed cover procedure this Court
observed in paragraph 16 of the said judgment as
follows:-
“16. On the first question, viz. as to
when for the purposes of the sealed cover
procedure the disciplinary/criminal
proceedings can be said to have
commenced, the Full Bench of the Tribunal
has held that it is only when a chargememo
in a disciplinary proceedings or a
charge-sheet in a criminal prosecution is
issued to the employee that it can be
said that the departmental
proceedings/criminal prosecution is
initiated against the employee. The
sealed cover procedure is to be resorted
to only after the charge-memo/chargesheet
is issued. The pendency of
preliminary investigation prior to that
20
stage will not be sufficient to enable
the authorities to adopt the sealed cover
procedure. We are in agreement with the
Tribunal on this point…..”
In the present case the respondent No. 4 was served
with three charge sheets. As per the above dicta,
the departmental proceedings will therefore have to
be deemed to have been initiated against him. The
Nigam cannot sit over the charge sheets or keep them
in a wrapper, and not disclose to the selection
committee until the charge sheets are either dropped
or proceeded further. Once a departmental proceeding
is pending, the claim of the employee concerned for
promotion will have to be kept in a sealed cover.
17. It was also submitted that the charge-sheet
dated 5.12.2011 was in fact a show cause notice. We
are not impressed at all by this submission which is
in fact negated the second affidavit of Shri S.
Raju. In any case, whether it was a charge-sheet or
a show cause notice, it was a document imputing
allegations against respondent No.4. When any high
officer is to be appointed to the position of
Managing Director, obviously his integrity has to be
gone into and the material whichever is there,
21
either in his favour or against him, has to be
placed before the Selection Committee. The Chairman
of the Nigam has certainly not conducted himself
appropriately in not placing these charge-sheets
before the Selection Committee. In absence thereof,
the merit (including absence of it) which was
required to be assessed could not be assessed
correctly.
18. Rule 5(2) of the Rules noted above speaks of
merit being assessed mainly on the basis of –
(i) integrity of the officer;
(ii) leadership qualities
(iii) capability to take quick decision
(iv) technical knowledge of the subject;
(v) special achievements/contribution and capacity to
execute the work easily and like qualities.
Thereafter, it states in terms that the entries in
the Annual Character Roll, special entries, other
records available in the personal file, and other
facts brought to the notice of the Departmental
Promotion Committee shall be considered for the
purpose of assessing the merit. The rule is
sufficiently wide and requires that everything which
22
is relevant for assessing the merit, has to be
placed before the Selection Committee. The rule
clearly states that all these facts are to be
brought to the notice of the Departmental Promotion
Committee and the Committee has to consider all the
material before deciding whether the officer was
suitable for promotion.
19. The Principal Secretary to the Water Supply
Department is the Chairman of the Nigam. He was
respondent No. 3 to the Writ Petition and is
respondent No. 3 in this Civil Appeal. He was fully
aware of the charge sheets pending against the
respondent No. 4. In fact he had signed the same.
It was his duty and responsibility to place these
charge sheets before the Selection Committee of
which he was a member. If the Secretary of the
department suppresses the relevant material,
obviously the selection will not be on merit. This
in fact raises a serious doubt about the integrity
of the then Chairman of the Nigam. In the
circumstances we expect the respondent No. 1 State
of Uttrakhand to hold appropriate inquiry as to why
the Chairman of the Nigam did not place the relevant
23
material before the Selection Committee and take
necessary corrective measure.
20. We are equally or more appalled at the manner
in which the concerned division bench of the High
Court has handled the matter. The High Court has
totally ignored the law on this aspect. The
relevant rule No. 5 was brought to the notice of the
High Court. Submissions were made thereon, and yet
the High Court held that the law permitted the
selectors to ignore altogether the charges in as
much as according to the Division Bench, the same
bears only an accusation against him and that the
integrity of a person cannot be questioned only on
the basis of an allegation against him. As stated
earlier we are not concerned with the merits of the
allegations. The Selection Committee was not
apprised of the three charge sheets at all. This
was clearly in breach of Rule 5, and the High Court
has erred in ignoring this aspect.
21. In view of these facts, the selection of
respondent No.4 was clearly faulted. The selection
was in breach of the requirements of Rule 5 and,
24
therefore, it will have to be set aside. The High
Court has also seriously erred in not allowing the
writ petition of the appellant herein. In the
circumstances, we allow this appeal, set aside the
judgment rendered by the Division Bench of the
Uttarakhand High Court. Prayer (A) made in the writ
petition will stand granted, namely, that the
selection and appointment of respondent No.4 will
stand set aside. Inasmuch as respondent No.4 has
worked all this time as Managing Director, whatever
salary and emoluments he has received, though on the
basis of a faulty selection, will not be recovered
from him. However, as a consequence of this order,
he will now be immediately placed in the position
which he was occupying prior to his selection as
Managing Director of the Nigam. It will be for the
Nigam to call for another Selection Committee and
consider whosoever are the eligible officers. Their
full record will be placed before the Selection
Committee, and thereafter it will be decided as to
who should be selected as the Managing Director of
the Nigam. The appeal is allowed in these terms,
with costs. Respondent No.4 will pay cost of
Rs.50,000/- and Respondent No.2 Nigam will pay cost
25
of Rs.50,000/- to the appellant. Respondent No.2
will be at liberty to recover this amount of cost
from the then Chairman of the Nigam.
22. Before we conclude, we must accord our
distress and shock at the manner in which the facts
have unfolded in this matter. The public
corporations like the Water Supply and Sewerage
Board enter into the contracts of hundreds of crores
of rupees. The persons occupying high positions
therein such as that of Managing Director have a
great responsibility to see to it that these schemes
are implemented honestly and expeditiously. After
67 years of independence, Indian cities and villages
continue to have a serious problem of getting good
potable water to drink. There is also a serious
problem of having a proper sewerage system. The
officers at the high level have a good salary and
perquisites. They have got to be above board. To
qualify for promotion to such posts, the minimum
that is expected is to have an unblemished record.
The law and procedure of selection to such posts
when there are allegations against the candidates,
was laid down in Jankiraman’s case (supra), way back
26
in the year 1991. If the high ranking officers come
out with a devise to circumvent the law by
suppressing the pending charge-sheets against
favoured candidate, it is a serious matter. The
Chairman is supposed to be an IAS Officer. These
officers are given a protection under the
Constitution itself. If such officers are to act in
breach of the law laid down by this Court, it would
result into officers of doubtful integrity getting
into higher positions. Luckily, in this present
matter, the petitioner who is an interested
candidate contested the appointment of respondent
No.4 and which is how the suppression of the
material came into light.
23. Having decried the role of the then Chairman
of the Nigam, we cannot remain oblivious of the fact
that a division bench presided over by the Chief
Justice of the High Court has condoned such serious
breaches in approving the suppression of the
relevant material from the selection committee,
which is most unfortunate and deplorable to say the
least. Such judgments would lead to the approval of
the appointment of persons of doubtful integrity in
27
higher administrative positions. Apart from that,
it will lead the people to doubt the integrity of
the judges as well. Citizens have a faith in the
judiciary because it is expected to render justice
even-handedly. The members of higher judiciary are
granted a constitutional protection so that they
function without fear and favour and not mis-apply
the law. It is such orders which bring the judiciary
into disrepute. We rather refrain from saying
anything more.
..........................J
(H.L. GOKHALE)
.........................J
(J. CHELAMESWAR)
New Delhi;
August 27, 2013.
Print Page
Issuance of - Competent authority - Held, charge-sheet was issued by Chairman of Nigam who was the disciplinary
authority - Hence, contention that since charge-sheet was not issued by competent authority, no cognizance on basis
thereof could be taken, rejected - Further held, Respondent 4 ought to have replied to charge-sheet and could not have
decided for himself that since according to him it was not issued by competent authority, he could ignore same,
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7706 OF 2013
(Arising out of SLP(C) No.30361/2012)
BHAJAN SINGH Appellant(s)
:VERSUS:
STATE OF UTTARAKHAND & ORS. Respondent(s)
H.L. Gokhale, J.
Dated;August 27, 2013.
Citation; (2013) 14 SCC 32
Leave granted.
2. This appeal by special leave seeks to
challenge the judgment and order dated 9.8.2012
rendered by a Division Bench of the Uttarakhand High
Court dismissing Writ Petition (S/B) No.153 of 2012.
That writ petition was filed by the appellant herein
seeking to challenge the appointment of respondent
No.4 herein to the post of Managing Director of the
Uttarakhand Peyjal Sanshadhan Vikas Avam Nirman
Nigam (“Nigam” for short). There were various
prayers in the writ petition. Prayer (A) was to call
2
for the record of the selection proceedings and
recommendations of the Selection Committee
constituted on 2.5.2012 by the Government of
Uttarakhand for selection to the post of Managing
Director and after examining the legality and
validity of selection process, recommendations to
quash these recommendations. Prayer (B) challenged
repatriation of the appellant to the post of Chief
Engineer which was his substantive post from his
officiating position of Managing Director. Prayer
(C) essentially sought consideration of the
appellant for the post of Managing Director, if
found fit for the said post.
3. The facts leading to this appeal are this
wise - The appellant as well as respondent No.4 both
joined as Assistant Engineers in the Respondent No.2
Nigam. The appellant joined sometimes in 1984
whereas respondent No.4 joined in 1977. Over the
years, they have risen in rank and the appellant,
who belongs to a Scheduled Caste, became
Superintending Engineer on 4.7.2002 whereas
respondent No.4 came to that position on 2.7.2008.
Subsequently the appellant became Chief Engineer on
3
8.2.2005 which post he is presently continuing to
occupy. As far as respondent No.4 is concerned, he
came in that position on 20.1.2011. He could become
Managing Director on 3.5.2012 pursuant to the
Departmental Promotion Committee’s decision. The
appellant was officiating as the Managing Director
at the relevant time, he was amongst the officers
who were considered for promotion and it is his case
that he deserved to be selected and not the
respondent No.4.
4. The challenge to the appointment of
respondent No.4 is two-fold. Firstly that under the
relevant rules regarding the consideration for
promotion to the post of Managing Director, minimum
8 years of service as Chief Engineer is required,
which respondent No.4 did not have. It is also
pointed out that respondent No.4 came in the
position of Superintending Engineer much after the
appellant became Chief Engineer. This being the
position, the submission is that respondent No.4 was
not eligible for being considered for the post of
Managing Director.
4
5. Be that as it may, the second challenge to
the appointment of respondent No.4 was to the manner
and merits of the selection of respondent No.4 for
the post of Managing Director and in our view, this
is a much more basic objection which we must look
into. There are rules framed for the appointment to
the post of Managing Director known as the
Uttarakhand Peyjal Sanshadhan Vikas Avam Nirman
Nigam (The Post of the Managing Director) Rules,
2011. They are framed under Section 96 read with
sub-section (2-A) of Section 4 of the Uttar Pradesh
Water Supply and Sewerage Act as applicable to the
State of Uttarakhand. Rule 3 of these rules provides
that the selection to the post of Managing Director
shall be made through a Selection Committee which
will comprise of 5 persons, namely:
(a) Chief Secretary to the State Government
(b) Principal Secretary/Secretary to the
State Government in the Water Supply Department
(c) Principal Secretary to the State Government
in
the Public Enterprises Department
(d) Principal Secretary/Secretary to the
State Government in the Personnel Department
(e) An expert nominated by the Chief Secretary
to
5
the State Government.
6. These Rules also provide for an officer
belonging to the Scheduled Castes or other backward
classes of citizens, nominated by the Chief
Secretary to be on the Committee if the officers
referred to in clauses (a) to (e) do not belong to
any Scheduled Caste or other backward classes. Rule
4 of these Rules provides that only those Engineers
of the Nigam shall be eligible for selection to the
post of Managing Director who, amongst others, as
per sub-clause (3) are holding the post of Chief
Engineer Level-II in the Nigam and have completed at
least 25 years of continuous service as Assistant
Engineer, Executive Engineer, Superintending
Engineer and Chief Engineer Level-II in the Nigam.
7. It is Rule 5 of these rules which is more
relevant as far as this case is concerned. This Rule
reads as follows:
“5(1) Selection for appointment to the
post of the Managing Director of the
Nigam shall be made on the basis of
merit.
(2) The ‘Merit’ shall be assessed mainly
on the basis of integrity of the officer,
6
leadership qualities and capability to
take quick decision, technical knowledge
of the subject, special
achievements/contribution and capacity to
execute the work easily like qualities.
Entries in the Annual Character Roll
special entries, other records available
in the personal file and other facts
brought to the notice of the Departmental
Promotion Committee shall be considered
for the purpose.
(3) The Principal Secretary/Secretary to
the State Government in the Drinking
Water Department shall prepare a list of
eligible person and place it before the
selection committee referred to in Rule
3, along with their character rolls and
other records pertaining to them.
(4) The Selection Committee shall
consider the cases of eligible persons on
the basis of the character rolls for ten
years immediately preceding the year in
which the selection is made and other
records, referred to in sub-rule (2).
(5) Annual entries of at least 08 years
out of the last ten years entries during
the period of service on the post just
below the promotional post must be
available.
(6) For the purpose of assessment of the
annual entries of the character rolls,
the entries of the entire service period
of the officers shall be taken into
consideration, however, the entries of
the last 10 years shall be given special
consideration. The entries shall be
categorized as ‘Outstanding’, ‘Very
Good’, ‘Good’, Fair/Satisfactory and
‘Adverse’. For entries of 12 months 10
marks for ‘Outstanding’, 08 marks for
‘Very Good’, 5 marks for ‘Good’, zero
marks for ‘satisfactory/fair’ and 05
negative marks for ‘adverse’ entry shall
be awarded. The marks obtained for the
period less than 12 months shall be
deducted from the total marks of months
for which the entries are assessed, in
7
the ratio of 12. The average monthly
marks shall obtained by total number of
months (the entries of which are
assessed) and by multiplying the same by
12 average annual marks shall be
obtained. The Officer securing more than
08 average annual marks shall be
considered fit for selection on the basis
of merit. Senior most in the cadre
amongst the persons who are considered
fit for selection shall be recommended
for appointment against the post.
(7) The name of the candidate, whose even
one out of he two entries immediately
before the year of selection is adverse
or whose integrity during the last five
years preceding the year of selection is
doubtful in the annual confidential entry
or by special adverse entry, shall not be
considered.
(8) If in selection on merit, any
candidate has been pushed down, he/she
shall be informed that he/she has been
recommended on account of nonavailability
of post or being classified
under ‘Unfit’ category for promotion, as
the case may be.”
8. It was submitted on behalf of the appellant
before the High Court that three charge-sheets were
pending against respondent No.4, and the pendency of
the charge-sheets was certainly a factor which had
to be considered while deciding the merit of
respondent No.4. This was an aspect which was
required to be placed before the concerned Selection
Committee which was to decide the promotion to the
post of Managing Director.
8
9. It was pointed out that the first chargesheet
was framed on 5.12.2011 which contained three
serious charges with respect to the irregularities
committed by the respondent No.4 as the Member
Secretary of the Zonal Tender Committee when he was
the Executive Engineer in the Construction Division,
Pauri, during 1.6.1995 to 19.7.2007. Charge No.1
thereof alleged of not complying with the
departmental procedure for deciding the tenders
concerning the work of laying and jointing of
pipelines and appurtenant works from Nanghat source
to Molthaghat under Nanghat Potable Water Supply
Scheme, resulting into avoidable delay in reaching
the benefits of the scheme to the general public.
Charge No.2 was regarding the procedure for
inviting, opening and acceptance of the tenders and
non-compliance thereof requiring re-tendering,
concerning the same Nanghat Potable Water Supply
Scheme, resulting into cost over-run and time overrun.
Charge No.3 was regarding the manner in which
the technical bids were decided concerning the said
Scheme, ultimately resulting into loss of Rs.49.17
lacs to the Nigam and benefiting the contractors.
9
These objections were raised in the Audit Report of
2008-2009 and accepted by the Accountant General.
This charge-sheet called upon the respondent No.4 to
inform the undersigning Inquiry Officer in writing
whether he wanted to examine or cross-examine any
witness. Evidences in support of the charges were
mentioned along with the charges. The charge-sheet
also required the respondent No.4 to submit written
statement. The charge-sheet was signed by the
Inquiry Officer for and on behalf of the Nigam, and
was approved by the Chairman of the said Nigam,
whose approval and signatures are also to be seen by
the side of the signatures of the Inquiry Officer.
10. It is material to note that no reply was
filed to this charge-sheet by respondent No.4. The
Selection Committee met on 2.5.20012 and respondent
No.4 was recommended for being appointed by its
recommendation dated 3.5.2012. It was specifically
mentioned in paragraph 4 of the writ petition that
the second charge-sheet was dated 3.3.2012
concerning the working of respondent No.4 during the
period 18.9.2000 to 19.7.2007 in respect of Birokhal
Group of Villages Pumping Water Supply Scheme and
10
the third charge-sheet dated 9.4.2012 was concerning
the scheme of utilization of sewage for irrigation
purpose for the Veer Chander Singh Garhwali Audyogik
University during 18.11.2000 to 30.6.2007. The
submission on behalf of the appellant was that this
material, namely, that the charge-sheets were
pending against respondent No.4, was not placed
before the Selection Committee at all. There is no
dispute, whatsoever, that respondent No.4 had not
replied to the charge-sheets nor with respect to the
fact that pendency of the charge-sheets against
respondent No.4, was not brought to the notice of
the Selection Committee. The Division Bench of the
High Court has given importance only to the aspect
of seniority of the engineers concerned, and
although the issue with respect to the integrity of
the officer, to be appointed to the high position of
Managing Director, was raised in this writ petition
the same has been decided against all canons of
settled laws.
11. (i) Various affidavits were filed on behalf of
the respondents in the High Court. One Shri S. Raju,
S/o Shri S. Subbiah affirmed two affidavits on
11
26.6.2012. One affidavit he affirmed in his capacity
as Principal Secretary, Department of Pey Jal, on
behalf of Respondent No. 1 Government of Uttrakhand.
In paragraph 17 thereof he stated as follows:-
“17. That perusal of the letter dated
5.12.2011, 3.3.2012 and 9.4.2012 do not
mention that these letters have been issued,
or the alleged charge sheets with these
letters have been issued, under any
disciplinary proceedings. These letters do
not also mention that prior to issuance of
these letters at any point of time an
explanation from respondent No. 4 was called
for or any order of initiating disciplinary
proceeding was issued, as such the Principal
Secretary or the Government on receiving the
proposal came to the conclusion that the
said letters/alleged charge sheets cannot be
deemed to have initiated any disciplinary
proceeding against respondent No. 4 and
accordingly the same was not mentioned in
the note before the Selection Committee.”
The officer has sought to contend that these charge
sheets do not mention that they have been issued
under any disciplinary proceedings. By stating so
he has betrayed his ignorance of the legal position
that the disciplinary proceedings begin with the
issuance of the charge-sheet. He has further stated
that prior to issuance of the charge sheets no
explanation was called from respondent No. 4, nor
any order of initiating disciplinary proceedings was
issued. Now, this is a matter of the procedure to
12
be followed by the concerned authority while
initiating the disciplinary proceeding. In a given
case a show cause notice may be issued, prior to the
issuance of the charge sheets, but that is not the
rule. In any case, it is the Principal Secretary
of the Department who in his capacity as the
Chairman of the Nigam was the Disciplinary
Authority. He has counter signed on the charge
sheet. The affidavit is a miserable attempt to
explain as to why the charge sheets were not
mentioned in the note placed before the Selection
Committee by the then Secretary of the Department.
(ii) In another affidavit affirmed by him on the
same day in his capacity as the Chairman of the
Nigam, he stated in paragraph 4 thereof that he had
joined the duties on the present post on 1.5.2012,
and his predecessor in office at the relevant point
of time, was one Mr. Utpal Kumar Singh, IAS. In
paragraph 5 of this affidavit he stated that he had
gone through the concerned file and upon perusal of
the files it appeared to him that the three draft
charge sheets were prepared. He has further stated
that the three draft charge sheets were sent to the
13
then Chairman for approval by the petitioner, and
the then Chairman had approved the same and sent it
with his covering letter to respondent No. 4 for
calling his explanation before initiation of any
disciplinary proceeding in the matter. In paragraph
9 he specifically stated amongst others as follows:-
“9. ……The said charge sheets appear
to have been approved and sent by the
then Chairman to the respondent No. 4 for
calling his explanation before commencing
any disciplinary proceedings in the
matters. No Enquiry Officer has been
appointed in the matter till now.
Thus, in so many words, while explaining his own
position, he has contradicted the previous Secretary
through this affidavit. On reading these two
affidavits one thing is very clear that chargesheets
were approved by the then Chairman and
thereafter sent to the respondent No. 4 calling for
his explanation, though for the reasons best known
to the Nigam the disciplinary proceedings have not
proceeded thereafter.
(iii) As far as respondent No. 4 is concerned he
affirmed an affidavit in reply and amongst others
gave an explanation on the allegations contained in
14
three charge sheets. He has however not denied
having received these charge sheets. He has also
not stated that he has filed any reply to these
charge-sheets.
12. In paragraph 2 of the impugned judgment the
High Court noted the contention that under Rule 5 of
the Rules concerning appointment to the post of
Managing Director, the Selection Committee has to
look into the merit of the candidate concerned. It
also noted the contention on behalf of the appellant
that the Selection Committee was not in the know of
the three charge sheets, and it did not have the
appropriate opportunity to determine the integrity
of the selected candidate. In paragraph 3 of its
judgment however the Court observed that it is true
that if the selectors had looked into those charge
sheets, they may have reacted in some other manner.
At the same time the Court held that mere issuance
of a charge sheet does not affect integrity of an
employee of a statutory authority. Thereafter, the
court observed in paragraph 3:-
“3…. Law requires selectors to ignore
15
altogether a charge-sheet issued against
a Government employee in as much as, the
same bears only an accusation against him
and integrity of a person cannot be
questioned only on the basis of an
allegation or insinuation against him.
The Rules, it was not contended, debarred
consideration of a candidate for
promotion against whom a disciplinary
proceeding is pending.”
And then in paragraph 4 and 5 as follows:-
“4. We think that integrity of the
officer, to be looked at by the
selectors, is such integrity, which is
reflected in the records of the candidate
appearing before the selectors. Issuance
of a charge sheet may be reflected in the
record, but the substance of the chargesheet
cannot be treated as part of the
record. As aforesaid, mere issuance of a
charge-sheet does not prevent the
selectors from selecting a candidate
against whom the charge-sheet has been
issued.”
“5. We, accordingly, find no scope
of interference with the selection under
challenge merely on the basis that the
charge-sheets, thus issued, were not
placed before the selectors.”
13. Mr. Subba Rao, learned counsel for the
appellant submitted that these observations of the
High court were totally contrary to the law laid
down by this Court. If an employee is facing a
16
charge-sheet, and is called upon to give an
explanation, surely such an employee cannot be
considered for promotion at that stage. His claim
for promotion will have to be kept in sealed cover
as held by a bench of three Judges of this Court in
Union of India Vs. K.V. Jankiraman & Ors., reported
in (1991) 4 SCC 109. The present case is clearly
one of suppression of the relevant material and not
bringing it before the Selection Committee. This
made the selection of the respondent No. 4 still
more venerable. The view taken by the High Court is
totally untenable and the judgment had to be set
aside.
14. On the other hand, it was submitted by Mr.
Ranjit Kumar, learned senior counsel appearing for
respondent No.4 that the submissions advanced in the
High Court were mainly with respect to the issue of
seniority. He contended that, in any case, the
charge-sheet dated 5.12.2011 was not issued by the
Disciplinary Authority and may not be taken
cognizance of. Now, as can be seen, it is the
Chairman who is the Disciplinary Authority, and the
charge-sheet bears the signatures of the Chairman
17
approving the charge-sheet. His signature is
appended side by side with the signature of the
Inquiry Officer, and therefore the submission has to
be rejected. It was further submitted that the
charge-sheet was a motivated document and it was an
attempt by the appellant herein to see to it that
respondent No.4’s career is damaged. It was pointed
out that the appellant himself was officiating as
Managing Director at the relevant time and,
therefore, he had chosen to rake up these
controversies at that very time.
15. It is not possible to accept this submission.
The charges in the charge-sheet are concerning the
period starting from 2006 onwards. Whatever was the
defence of respondent No.4, he ought to have replied
to the charge-sheet, and he could not have decided
it for himself that since according to him, the
charge-sheet was not issued by the Disciplinary
Authority, he was going to ignore the same. Nothing
prevented him from placing on record his view point
that the charge-sheets were motivated. That apart,
as is seen from the record, the Chairman of the
Nigam had signed on the charge-sheet approving the
18
same and it is, therefore, that the Inquiry Officer
had issued the charge-sheet. The Chairman of the
Nigam is the Secretary of the Water Supply
Department. He had taken some three months’ time
after the note was put up to him, to approve the
charge-sheet. He was also a Member of the Selection
Committee which consisted of 5 senior officers of
the State. It was surely expected of him to bring it
to the notice of the Selection Committee that
charge-sheets were pending against respondent No.4.
Respondent No.4 may have his defence on the merits
of the charges. All that we can say is that the fact
of pending charge-sheets ought to have been placed
before the Selection Committee. In the absence of
such a very vital material being placed before the
Selection Committee, the Committee went into the
aspect of determining the merit without having the
benefit of this vital material which was against
respondent No.4. If these charge-sheets were made
available to the Committee, it would have taken its
decision after considering the same, and the
principles laid down by this Court in Union of India
& Ors. Vs. K.V. Jankiraman & Ors., (supra) would
have squarely applied to respondent No.4’s case. His
19
claim for promotion would have been kept in a sealed
cover and he would have been asked to wait until the
enquiry was complete.
16. (i) As held in paragraph 29 in Jankiraman’s case
(supra):
“An employee has no right to promotion.
He has only a right to be considered for
promotion. The promotion to a post and
more so, to a selection post, depends
upon several circumstances. To qualify
for promotion the least that is expected
of an employee is to have an unblemished
record. That is the minimum expected to
ensure a clean and efficient
administration and to protect the public
interest.”
(ii) On the sealed cover procedure this Court
observed in paragraph 16 of the said judgment as
follows:-
“16. On the first question, viz. as to
when for the purposes of the sealed cover
procedure the disciplinary/criminal
proceedings can be said to have
commenced, the Full Bench of the Tribunal
has held that it is only when a chargememo
in a disciplinary proceedings or a
charge-sheet in a criminal prosecution is
issued to the employee that it can be
said that the departmental
proceedings/criminal prosecution is
initiated against the employee. The
sealed cover procedure is to be resorted
to only after the charge-memo/chargesheet
is issued. The pendency of
preliminary investigation prior to that
20
stage will not be sufficient to enable
the authorities to adopt the sealed cover
procedure. We are in agreement with the
Tribunal on this point…..”
In the present case the respondent No. 4 was served
with three charge sheets. As per the above dicta,
the departmental proceedings will therefore have to
be deemed to have been initiated against him. The
Nigam cannot sit over the charge sheets or keep them
in a wrapper, and not disclose to the selection
committee until the charge sheets are either dropped
or proceeded further. Once a departmental proceeding
is pending, the claim of the employee concerned for
promotion will have to be kept in a sealed cover.
17. It was also submitted that the charge-sheet
dated 5.12.2011 was in fact a show cause notice. We
are not impressed at all by this submission which is
in fact negated the second affidavit of Shri S.
Raju. In any case, whether it was a charge-sheet or
a show cause notice, it was a document imputing
allegations against respondent No.4. When any high
officer is to be appointed to the position of
Managing Director, obviously his integrity has to be
gone into and the material whichever is there,
21
either in his favour or against him, has to be
placed before the Selection Committee. The Chairman
of the Nigam has certainly not conducted himself
appropriately in not placing these charge-sheets
before the Selection Committee. In absence thereof,
the merit (including absence of it) which was
required to be assessed could not be assessed
correctly.
18. Rule 5(2) of the Rules noted above speaks of
merit being assessed mainly on the basis of –
(i) integrity of the officer;
(ii) leadership qualities
(iii) capability to take quick decision
(iv) technical knowledge of the subject;
(v) special achievements/contribution and capacity to
execute the work easily and like qualities.
Thereafter, it states in terms that the entries in
the Annual Character Roll, special entries, other
records available in the personal file, and other
facts brought to the notice of the Departmental
Promotion Committee shall be considered for the
purpose of assessing the merit. The rule is
sufficiently wide and requires that everything which
22
is relevant for assessing the merit, has to be
placed before the Selection Committee. The rule
clearly states that all these facts are to be
brought to the notice of the Departmental Promotion
Committee and the Committee has to consider all the
material before deciding whether the officer was
suitable for promotion.
19. The Principal Secretary to the Water Supply
Department is the Chairman of the Nigam. He was
respondent No. 3 to the Writ Petition and is
respondent No. 3 in this Civil Appeal. He was fully
aware of the charge sheets pending against the
respondent No. 4. In fact he had signed the same.
It was his duty and responsibility to place these
charge sheets before the Selection Committee of
which he was a member. If the Secretary of the
department suppresses the relevant material,
obviously the selection will not be on merit. This
in fact raises a serious doubt about the integrity
of the then Chairman of the Nigam. In the
circumstances we expect the respondent No. 1 State
of Uttrakhand to hold appropriate inquiry as to why
the Chairman of the Nigam did not place the relevant
23
material before the Selection Committee and take
necessary corrective measure.
20. We are equally or more appalled at the manner
in which the concerned division bench of the High
Court has handled the matter. The High Court has
totally ignored the law on this aspect. The
relevant rule No. 5 was brought to the notice of the
High Court. Submissions were made thereon, and yet
the High Court held that the law permitted the
selectors to ignore altogether the charges in as
much as according to the Division Bench, the same
bears only an accusation against him and that the
integrity of a person cannot be questioned only on
the basis of an allegation against him. As stated
earlier we are not concerned with the merits of the
allegations. The Selection Committee was not
apprised of the three charge sheets at all. This
was clearly in breach of Rule 5, and the High Court
has erred in ignoring this aspect.
21. In view of these facts, the selection of
respondent No.4 was clearly faulted. The selection
was in breach of the requirements of Rule 5 and,
24
therefore, it will have to be set aside. The High
Court has also seriously erred in not allowing the
writ petition of the appellant herein. In the
circumstances, we allow this appeal, set aside the
judgment rendered by the Division Bench of the
Uttarakhand High Court. Prayer (A) made in the writ
petition will stand granted, namely, that the
selection and appointment of respondent No.4 will
stand set aside. Inasmuch as respondent No.4 has
worked all this time as Managing Director, whatever
salary and emoluments he has received, though on the
basis of a faulty selection, will not be recovered
from him. However, as a consequence of this order,
he will now be immediately placed in the position
which he was occupying prior to his selection as
Managing Director of the Nigam. It will be for the
Nigam to call for another Selection Committee and
consider whosoever are the eligible officers. Their
full record will be placed before the Selection
Committee, and thereafter it will be decided as to
who should be selected as the Managing Director of
the Nigam. The appeal is allowed in these terms,
with costs. Respondent No.4 will pay cost of
Rs.50,000/- and Respondent No.2 Nigam will pay cost
25
of Rs.50,000/- to the appellant. Respondent No.2
will be at liberty to recover this amount of cost
from the then Chairman of the Nigam.
22. Before we conclude, we must accord our
distress and shock at the manner in which the facts
have unfolded in this matter. The public
corporations like the Water Supply and Sewerage
Board enter into the contracts of hundreds of crores
of rupees. The persons occupying high positions
therein such as that of Managing Director have a
great responsibility to see to it that these schemes
are implemented honestly and expeditiously. After
67 years of independence, Indian cities and villages
continue to have a serious problem of getting good
potable water to drink. There is also a serious
problem of having a proper sewerage system. The
officers at the high level have a good salary and
perquisites. They have got to be above board. To
qualify for promotion to such posts, the minimum
that is expected is to have an unblemished record.
The law and procedure of selection to such posts
when there are allegations against the candidates,
was laid down in Jankiraman’s case (supra), way back
26
in the year 1991. If the high ranking officers come
out with a devise to circumvent the law by
suppressing the pending charge-sheets against
favoured candidate, it is a serious matter. The
Chairman is supposed to be an IAS Officer. These
officers are given a protection under the
Constitution itself. If such officers are to act in
breach of the law laid down by this Court, it would
result into officers of doubtful integrity getting
into higher positions. Luckily, in this present
matter, the petitioner who is an interested
candidate contested the appointment of respondent
No.4 and which is how the suppression of the
material came into light.
23. Having decried the role of the then Chairman
of the Nigam, we cannot remain oblivious of the fact
that a division bench presided over by the Chief
Justice of the High Court has condoned such serious
breaches in approving the suppression of the
relevant material from the selection committee,
which is most unfortunate and deplorable to say the
least. Such judgments would lead to the approval of
the appointment of persons of doubtful integrity in
27
higher administrative positions. Apart from that,
it will lead the people to doubt the integrity of
the judges as well. Citizens have a faith in the
judiciary because it is expected to render justice
even-handedly. The members of higher judiciary are
granted a constitutional protection so that they
function without fear and favour and not mis-apply
the law. It is such orders which bring the judiciary
into disrepute. We rather refrain from saying
anything more.
..........................J
(H.L. GOKHALE)
.........................J
(J. CHELAMESWAR)
New Delhi;
August 27, 2013.
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