2001 Supreme(SC) 1194

2001(6) Supreme 794
SUPREME COURT OF INDIA
(From Calcutta High Court)
S. Rajendra Babu and Brijesh Kumar, JJ.
Nilangshu Bhusan Basu etc. -Appellant
versus
Deb K. Sinha & Ors. etc. -Respondents
Civil Appeal No. 6356 of 1998
With
SLP (Civil) No. 15062 of 1998
Decided on 31-8-2001
Counsel for the Parties :
For the Appellant : Dipankar Gupta, Sr. Advocate, Bijan Kumar Ghosh and Pranab Kumar Mullick, Advocates.
For the Respondents : V.R. Reddy and Tapas Ray, Sr. Advocates, Anil Agarwalla, K.V. Vijayakumar, K.V. Vishwanathan, Shyamal Ganguli, Gaurav Jain and Ms. Abha Jain, Advocates.

IMPORTANT POINT
The order of High Court setting aside selection of appellant on the basis of direct recruitment by open competition is not sustainable. The selection is according to provisions of Calcutta Municipal Corporation Act and Rules.

Headnote:Calcutta Municipal Corporation Act, 1980-Sections 14(1)(f) r/w 14(3) and (4)-Selection for the post of Chief Municipal Engineer (Civil) of the Calcutta Municipal Corporation-Calcutta Municipal Corporation (Recruitment of Officers Appointed by Mayor-in-Council) Rules, 1985-Appendix VII S.No. 8-Qualifications and other conditions for recruitment of Chief Election Engineer (Civil)-By direct recruitment as well as for appointment by promotion-Experience on "Responsible post"-40 outside candidates and 8 Departmental candidates-Out of 48, appellant was selected by direct recruitment by open competition who has been said to be working as an executive engineer in the Deptt.-Challenged in writ petition-High Court set aside appellant s selection on ground that first recruitment by promotion should have been done-Whether correct? (No)-Appeal allowed-SLP s by unsuccessful candidates-Contention selection was discriminatory and violative of Article 16 of Constitution -Whether correct? (No)-SLP s dismissed-Order accordingly-Case law referred.

       As to Civil Appeal

       Held : The Corporation proceeded to select a candidate for the post of Chief Municipal Engineer (Civil) by direct recruitment, in consultation with the Public Service Commission. The selection was held and the present appellant (Respondent No. 5 in the Writ Petition) was duly selected. The High Court has set aside the selection on the ground that recruitment to the post of Chief Municipal Engineer (Civil) can either be by direct recruitment or by promotion. It has been held that there is no guideline as to in what circumstances recruitment should be through process of direct selection or by promotion. Therefore, there is an element of arbitrariness in deciding as to which mode of recruitment should be adopted. The High Court was of the view when both modes are available, process for recruitment by promotion from amongst the departmental candidates should be resorted to first and in case suitable candidates are not available, method of direct recruitment should be adopted otherwise it will amount to arbitrary and discriminatory exercise of power as against the departmental officers as the departmental candidates also have some legitimate expectations of being considered for appointment to the higher posts. According to the High Court, taking a decision straightaway for direct recruitment without first examining the worth of the departmental candidates, is arbitrary. It has also been held that the Public Service Commission should have been consulted by the Corporation while taking a decision as to whether recruitment should be by direct recruitment or by promotion. (Para 5)

       Held further : We feel that once the rules permit recruitment to a post either by direct recruitment or by promotion leaving the decision to the appropriate authority, it will be difficult to say or lay down that process of recruitment by promotion must necessarily be adopted first. As a matter of fact, it would amount to legislating a provision in the Statute. (Para 6)

       The fact thus remains that the Mayor-in-Council discussed the matter and decided to go in for direct recruitment. It has not been submitted before us that the MIC had no authority to take such a decision or that the decision taken suffers from mala-fides. There is no basis to come to a conclusion that process of promotion must necessarily be adopted first and in the event of non-availability of suitable candidate, the direct recruitment can be resorted to. So far the contention that Mayor-in-Council should have consulted the Public Service Commission, in taking a decision as to whether recruitment is to be made by direct recruit ment or by promotion, in our view has no force. All that is provided in clause (a) of sub-section (3) of Section 14 is that appointment to the given posts shall be made by Mayor-in-Council in consultation with the State Public Service Commission and clause (b) provides for appointment by State Government in consultation with Mayor-in-Council from among the persons who are or have been in the service of the Government, if the Mayor-in-Council so decide. A reading of sub-sections (3) and (4) of Section 14 by no means leads us to the conclusion that Public Service Commission is to be consulted for taking a decision as to which mode of recruitment should be adopted. (Paras 8 and 9)

       It has next been submitted that the departmental officers have been discriminated against since only those departmental officers could apply who responded to the qualification laid down for the candidates for direct recruitment more particularly about the age, since maximum age limit was 45 years. It may be observed that method of direct recruitment was adopted as permissible under the rules. Anyone responding to the qualification was free to apply including the departmental candidates. Some of the petitioners in the other Writ Petition are those who had applied but remained unsuccessful. It was an open selection based on merit and not seniority. Therefore, it cannot be argued that method of direct recruitment as adopted brought about any unreasonable results or it was discriminatory. In this connection it may also be mentioned here that learned counsel for the appellant submitted that post graduate qualification was one of the desirable qualification prescribed under the rules. It is further submitted that the appellant was the only candidate who possessed the post graduate qualification. We are however not on the merit of the selection. The Selection Committee made the selection of the candidate whom it thought to be the best among the applicants. We therefore find no force in this submission too as raised on behalf of the respondents. (Para 11)

       Held also : We don t find that there has been violation of Article 16 of the Constitution in any manner as sought to be argued on behalf of the respondents. We further find no ground for the High Court to have held that first the process for promotion should be resorted to and in case no candidate fit to be promoted was available then alone direct recruitment could be resorted to. It is not a correct approach. The order of the High Court is not sustainable. (Para 12)

       As to SLP s

       Held : In our view the petitioner have completely failed to substantiate through any of the documents referred to above that the expression "experience on the responsible post" would mean, in the present case, experience on the post of Deputy Chief Engineer which is next below the post of Chief Municipal Engineer (Civil). We find no force in this submission made on behalf of the petitioner. (Para 16)

       In our view the selection cannot be thrown out merely on such contentions as raised by the petitioner viz. there was no break up of the marks or it was not as it should have been according to the petitioners. All candidates possessed the required qualification and experience, and they must have been working in different organizations. The assessment of their merit on the basis of their work and experience and personal interview by the expert body cannot be discarded on such grounds. The S.L.P. has thus no force. (Para 17)

       Held finally : In view of the discussion held above, we allow the Civil Appeal No. 6356 of 1998 and set aside the judgment passed by the Division Bench of the Calcutta High Court dated September 18, 1998. The Special Leave Petition (Civil) No. 15062 preferred against the judgment of the Calcutta High Court dated August 11, 1998 is dismissed. Costs easy. (Paras 18 and 19)