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2021 Supreme(Del) 2087
IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajiv Sahai Endlaw, Amit Bansal, JJ.
Union Of India And Anr - Appellant
Versus
Binay Kumar Biswas And Ors - Respondent
W.P.(C) No. 3420 of 2021; C.M. No. 10386 of 2021
Decided On : 08-04-2021
Bhagvan Swarup Shukla, Advocate, Sarvan Kumar, Advocate, S. Kumar, Advocate, Rajeev Kumar Yadav, Advocate, Aseem Mehrotra, Advocate
The ACC has discretion in appointments, and the reasoning for non-appointment must be justified.
Headnote:
Search-cum-Selection Committee - Appointment of Executive Director - OM dated 25th May, 2009, OM dated 30th July, 2007 - AIIMS at Raebareli, Gorakhpur, Bathinda, Bibinagar, Deoghar, Kalyani - No separate panel mandate - ACC's discretion - Reasoning for non-appointment
Fact of the Case:
The petition concerns the appointment of Executive Directors in various AIIMS. The Search-cum-Selection Committee prepared separate panels for each AIIMS, but the advertisement did not mandate this. The ACC had discretion to appoint from the panel. The ACC did not appoint respondent No.1 due to lack of NOC from ESIC.
Finding of the Court:
The Court found that the Search-cum-Selection Committee's separate panel for each AIIMS was beyond their mandate. The ACC had the discretion to appoint from the panel. The reason for non-appointment of respondent No.1 was justified due to lack of NOC.
Issues: Mandate of Search-cum-Selection Committee, ACC's discretion, Reasoning for non-appointment
Ratio Decidendi: The Search-cum-Selection Committee's mandate did not include preparing separate panels for each AIIMS. The ACC had discretion to appoint from the panel. The reason for non-appointment of respondent No.1 was justified due to lack of NOC.
Final Decision: The impugned order was set aside, and the respondent's application was dismissed.
JUDGMENT
Rajiv Sahai Endlaw, J. - On 16th March, 2021, when this petition first came up before us, the following order was passed:-
"4. The counsel for the writ petitioner has argued, (i) that a Search-cum-Selection Committee was constituted to fill up posts of Executive Director in each of the six All India Institute of Medical Sciences; (ii) that the said Search cum Selection Committee recommended two candidates for each of the AIIMS; (iii) that the respondent No. 1 herein was one of the recommendees for AIIMS at Kalyani, West Bengal; (iv) that the respondent No.3 was one of the recomendees for AIIMS at Raebareli, Uttar Pradesh; (v) that the Appointments Committee of the Cabinet (ACC), instead of appointing respondent No. 3 at AIIMS Raebareli, Uttar Pradesh, for which he was one of the recommendees, appointed him at AIIMS, Kalyani, West Bengal and did not appoint respondent No. 1 at any of the AIIMS; and, (vi) that on the respondent No. 1 approaching the Central Administrative Tribunal (CAT), Principal Bench, the CAT vide the impugned order dated 1st October, 2020 has held the appointment of respondent No. 3 for AIIMS, Kalyani, West Bengal to be bad and has directed the ACC to consider the matter again, because no reasons were found to have been given by ACC.
5. The counsel for the petitioners states that respondent No. 1 is the only contesting respondent.
6. The counsel for respondent No. 3 however also appears and states that the respondent No. 3 is functioning at Kalyani, West Bengal as Executive Director of AIIMS.
7. We have enquired from the senior counsel appearing for respondent No. 1, whether there is need for the ACC to give reasons for non-selection.
8. Prima facie it appears that once a Select Committee has been constituted and has drawn up a panel from which ACC is to select, ACC is not required to give reasons for selecting a particular person from the panel and not selecting the others; it is felt that when all the recommendees are working at other high posts, giving reasons prejudicial to them for their non-selection may work to their disadvantage.
9. During the hearing, we have also enquired whether it was the mandate of the Select Committee, to make separate recommendations for each of the AIIMS or it was to be left to the ACC to allocate the recommendees from the panel to whichsoever AIIMS they deemed appropriate.
10. During the hearing, it is also informed that the entire record of CAT has not been placed on record. In fact, the deliberations of ACC are also not on record, though there is some controversy with the senior counsel for respondent No. 1 contending that the same were not placed before CAT either.
11. Whichsoever counsel desires to place reliance on whichsoever part of the record of the CAT, is at liberty to place the same before the next date.
12. The petitioner to also place before us the mandate of the Search cum Selection Committee. Even if the record of deliberations of ACC have not been placed before the CAT, the same be also placed before this Court.
13. List on 8th April, 2021."
2. The counsels for the petitioners have brought to the Court, in a sealed cover, a file and have handed over the same to the Court Master. The Court Master has opened the seal and the File has been perused.
3. The counsels have also taken us through (i) Office Memorandum (OM) dated 25th May, 2009 of the Department of Personnel and Training (DOPT) on the subject of setting up of Search Committees/Search-cumSelection Committees ; (ii) OM dated 30th July, 2007 of the DOPT, also on the subject of setting up of Search Committees/Search-cum-Selection Committees ; (iii) the counter affidavit filed by the petitioners before the Central Administrative Tribunal (CAT) and particularly to paragraphs 3 to 15 of the brief facts of the case as stated therein; (iv) the advertisement for the post of Executive Director each in AIIMS at Raebareli (Uttar Pradesh), Gorakhpur (Uttar Pradesh), Bathinda (Punjab), Bibinagar (Telangana), Deoghar (Jh
