UNION OF INDIA v. CHOTHIA (H.P.) ETC. ETC & Ors.

The short point which falls for determination in this case is as to whether or not the provisions of the Regulation 5 (2) (b) of the Indian Forests Service (Initial .Recruitment) Regulations, 1966 (hereinafter referred to as the .Regulations) are mandatory in character. The High Court held that Regulation 5(2)(b) is mandatory and a~ the Selection Board did not give reasons as enjoined by this provision, the selection made by the Board was illegal. Appearing in support of the appeal,. Mr. Bhatt submitted in the first place that the Regulation does not con tain mandatory requirements for giving reasons by the Board when it submits its recommendations to the Commission. Secondly, it was sub mitted that the Selection Board on perusal of the confidential rolls of the Respondent No. 1 was satisfied that he was not a suitable person to be recruited to the service and he was, therefore, ignored. The Board, therefore, did not commit an_y error of law in not selecting, respmdent no. 1. Reliance has been placed by the Counsel for the Appellant on an unreported decision of the Kerala High Court which has been annexed to the paper book. In our opinion, the interpre tation of Regulation 5 (2) (b) does not present 11.nv difficulty at alL Relevant portion of Regulation 5 may be extracted thus : - F "5. PreQ_aration of list of suitable officers. - / '

#1. The Board shall prepare, in the order of preferance, a list of such officers of State Forest Service who satisfy the conditions specified in Regulation 4 and who are appointment to adjudged by the Board suitable for posts in the senior and junior scales of service.

#2. The list prepared in accordance with sub-regulation ( 1) shall .then be referred to the Commission advice, by the Central Government alongwith - ~ ,, ,,.-:-,- ~ (a) the records of all officers of State Forest Service· included in the list; (b) the records of all other eligible officers of the State Forest Service who are not adjudged suit- able for inclusion in the list, together with the • / ,..- G H UNION OF INDIA V. CHOTHIA (~!AU, J.) 655 reasons as recorded by the Board for their non- inclusion in the list" A (Emphasis ours) A perusal of Regulation 5 manifestly shows that the provision requir~s three essential conditions to be complied with : - (i) that the Board shall prepare in order of preferance a list of officers of the State Forest Service in accor dance with Regulation 4; (ii) that the Board must adjudge persons whom it thinks suitable for the appointment to the posts; (iii) that the Board shall send the records of eligible offi cers -of the State who are not adjudged as suitable together with reasons recorded by the Board. ,.> .. The words "shall then be referred to the Commission for advice, by the Central Government alougwith" appear to be of a mandatory character and govern not ouly cl. (a) but all the other clauses viz. (b) and ( c). Thus, a plain interpretation of regulation 5 would that the requirements mentio_11_ed in els. (a), (b) aud (c) must Le complied with before the recommendation is sent to the Commission. Cl. (b) clearly states that where eligible officers of the State Fcrnst Service are not found suitable, reasons must be given by the Board for their non-inclusion in the select list. This provision, in our opinion is in public interest and has been made with a view to avoid arbitrary or capricous exercise of discretion by the Board, and also to prevent any hostile discrimination. The word 'adjudge' is a very strong term and in dicates that the Board must be satisfied that a person is not suitable and the requirement for giving reasons, ha's been enjoined for the purpose of proving that the Board was not only satisfied but has given grounds of it~ satisfaction so as to exclude possiblity of any oblique or extra neous consideration. In these circumstances, therefore, we are unable to agree· with the counsel for the appellant that the requirement of giving reasons as contained _in Regulation 5 (2) (b) is merely an idle formality and it is a substantial compliance with the said clause if the Board peruses the confidential rolls of officers and forwards the record to the Commission. Another purpose served by the provision is that the Commission would be in a position to know the views of Selection Board and the reasons given by it for excluding a particular candidate so that it may verify the correctness of the reasons given by the Board with the record forwarded by the Board. In these cir cumstances we are satisfied that the provisions for giving reasons by IL. is Regulation 5 (2) (b) are mandatory and must be complied with. not disputed in the present case that the Board had not complied with this part of the provision of Regulation 5 and this was. sufficient to vitiate the selection made by the Board. Mr. Bhatt, relied on an un reported decision of the Kerala High Court where, in a very s~mmary fashion, the said High Court has held that there was no reqmrement - ~ ---J ·' , B c D E F G H 656 S\IUEME COURT REPORTS [1978] 3 S.C.R. A in the Regulation that reasons should be given. the High Court of Kerala observed as follows : - In this connection, "It is to be observed that there is no such requirement in the Rul~s with which we are concerned in the instant case. Being so, it would. be i11.appropriate to import any require ment of recording of reasons for selection in this case." (Vide K. G. Vasudevan vs. State of Kera/a & Ors. 0 P 2910172 dt 1-10-75) The High Court does not appear to have applied its mind language used in S. 5(2)(b) of !he Regulation, nor has it considered the avowed purpose of this provision which is undoubtedly in public interest. In these circumstances, therefore, we find ourself unable to agree with the view taken by the Kerala High Court on this point and we overrule the same. - Lastly, Mr. Bhatt submitted that in view of the reply-affidavit filed by Mr. Bhardwaj, Deputy Secretary to the Government of India, it would appear that the reasons were given by the Board which were that the service record of the respondent did not justify the inclusion of In the first place, the affidavit appears to his name in the select list. have been given by a person who was not a member of the Selection Board and as the recommendation was by a non-speaking order he would not at all be conversant with the manner in which the recom mendation was made ignoring the Res_pondent No. 1. Nor had he any knowledge of the way in which the mind of the Board was wo.rking at that (!me. The deponent, therefore, was not at all competent to certify as to what was the reason given by the Board as required by Regulation 5 (2) (b) nor could the affidavit supply an omission made by the Selection Board in not complying with the mandate contained m Regulation 5(2)(b). Secondly, the affidavit is obtuse because according to the Deputy Secretary, there was no obligation placed on the Selection Board to give reasons for the supersession of the said Forest Service Officers. This view as we have pointed out, is abso lutely incorrect and is not borne out by the language of the provision of Regulation 5. Apart from this, the High Court has pointed out in its judgment at page 31 of the brief that the Court had given an op portunity to the appellant to produce the records before it so as to find out if the confidential records of the Respondent No. 1 did not justify the selection. The appellant did not choose to avail of the opportunity given to it by the High Court which clearly indicates that the position was somewh~t obscure. For these reasons, we find ourself in complete agreement with the judgment of the}Iigh Court and endorse the same. We are clearly of the opinion that the provisions of Regulation 5(2) (b) are mandatory in character and whether the Board sends the records to the Commis sion, it must give its reasons as required ~y s. 5 (2) (b ! o~ the Re$u lation. The result is that the appeals fail and are d1sm1ssed with costs to Respondent No. l only in civil Appeal No. 1329/77. S. R. Appeal dismissed. B c D E F G H - .. ' / \ ... ~ .. •