Judgment

HEGDE J.: The appellant and the third respondent are serving in the Agricultural Department of the Bihar Government.. Till February 1968 Mr. B. N. Sinha was the Director of the Agriculture in that State. He retired in February of that year. On November 25, 1967, the State Government of Bihar wrote to the Public Service Commission requesting the Commission to select one of the fourteen officers shown in the list accompanying that letter for being promoted as Director of Agriculture. The pay scale of some of those officers was Rs. 900-1400 and others Rs. 1200-1700. In that letter the Government stated that the question of seniority of those officers is still under consideration and the list sent was not arranged in accordance with seniority. The Commission wrote to the Government on April 29, 1968 asking the Government to determine the seniority of those officers before it is asked to recommend one of them for being appointed as Director of Agriculture. The Government wrote back to the Commission on September 23. 1969 stating that the question of seniority of those officers cannot be easily settled as there were some complications and the Commission should proceed to select one of the officers mentioned in the list solely on the basis of merit and suitability.

2. After examining the records of all the officers concerned, the Commission recommended the name of the appellant. Immediately thereafter the third respondent approached the High Court with a petition under Article 226 of the Constitution proving that the recommendation of the Commission may be quashed and the Government asked to make the appointment in accordance with the rules. The High Court came to the conclusion that the third respondent is senior to the appellant and has greater merit than the appellant. Hence under the rules he was entitled to be promoted. This is an appeal by certificate against that decision. Thereafter the Government appointed the third respondent to officiate as Director of Agriculture. It appears that the third respondent is superannuated on the 1st of this month but he has been given a month s extension.

3. It was not disputed before us that the post of Director of Agriculture is a selection post. Therefore the question of seniority was not relevant in making the selection. It is for the State Government to select such officer as it considers as most suitable. In this view we think the High Court was not justified in going into the question of seniority nor will we be justified in going into that question. It may be noted that at the time the Commission made this recommendation the pay scale of both the appellant as well as the third respondent was Rs. 1200/1700.

4. So far as the question of suitability is concerned, the decision entirely rested with the Government. In other words the Government is the sole judge to decide as to who is the most suitable candidate for being appointed as the Director of Agriculture. For discharging that responsibility it was open to the Government to seek the assistance of the Public Service Commission. In our judgment the High Court was not justified in calling for the records of the Public Service Commission and going through the notings made by various officers in the Commission as well as the correspondence that passed between the Commission and the Government. The High Court overlooked the fact that the Government sought the assistance of the Commission and not that of the High Court for finding out the most suitable candidate. In this case there was no complaint of mala fides either on the part of the Government or the Commission. That being so the interference of the High Court in the matter of selection made by the Government was not called for.

5. The post of Director of Agriculture is admittedly an ex-cadre post. The selection to that post is made solely on the basis of merit. Merely because the Government in its letter to the Commission used the word "promotion", the High Court should not have t