NO.808 OF 2001 ANDWMP.NO.1084 OF 20011. Council of Scientific and IndustrialResearch (CSIR) v. Dr.M. Vijayan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22-07-2008CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE K. CHANDRUWRIT PETITION NO.808 OF 2001ANDWMP.NO.1084 OF 20011. Council of Scientific and IndustrialResearch (CSIR), rep. by its Director General, Rafi Marg, New Delhi 110 001.2. Central Electrochemical Research Institute (CECRI), rep. by its Director, Karaikudi 630 006... PetitionersVs.1. Dr.M. Vijayan, Scientist, Central Electrochemical Research Institute (CECRI), Karaikudi 630 006.2. The Chairman, Assessment Committee for Meritand Normal AssessmentScheme (1989-94), Karaikudi.3. Prof.G.V. Subba Rao, professor, Department of Physics, National University of Singapore, 10,Kent Ridge Crescent Road, Singapore. 4. The Registrar, Central Administrative Tribunal, Chennai Bench... Respondents https://hcservices.ecourts.gov.in/hcservices/ Petition filed under Article 226 of the Constitution of India forthe issuance of Writ of Certiorari to call for the records pertainingto the orders passed by the 4th respondent dated 22.9.2000 inO.A.No.395 of 1998 and quash the same.For Petitioners: Mrs.C.N.G. NiraimathiFor Respondent-1: Mrs.D. Nagasaila- - -J U D G M E N TP.K. MISRA, JThe present writ petition is filed by the Council ofScientific and Industrial Research ( in short "CSIR") and the CentralElectrochemical Research Institute (in short "CECRI") against theorder of the Central Administrative Tribunal, Madras Bench (in short"Tribunal"), dated 22.9.2000 in O.A.No.395 of 1998, wherein theTribunal, while allowing the Original Application filed by thepresent Respondent No.1, quashed the order dated 8.5.1997 anddirected constitution of a fresh Selection Committee to assess thesuitability of the applicant for promotion to Group IV (2).2. The facts in brief, which were projected before theTribunal and relevant for the decision in the present writ petition,are as follows :-2.1 For convenience, the parties are described in the manner inwhich they had been arrayed in O.A.No.395 of 1998 before the Tribunal.2.2 The applicant was working as a Scientist under CECRI. Thequestion relates to promotion from Group IV (1) to Group IV(2). Anofficer becomes eligible to such post after completion of five yearsof service in the grade of Scientist-B/Grade IV(1). The personseligible to be considered for promotion are to be assessed on thebasis of the marks obtained in the Annual Performance AppraisalReport (APAR) and assessed by Peer Review Committee and the marksobtained at the interview. If the total marks secured by theindividual touches the threshold fixed for promotion, his case isrecommended for promotion. For the purpose of holding an interviewduring the relevant year, a Selection Committee was constituted ofwhich, apart from Opposite Party No.3, who was the Chairman, therewere three other members including Opposite Party No.4, who was theDirector of the CECRI. Incidentally, such Opposite Party No.4 in hiscapacity as the Director was also the authority competent to approvethe appraisal made by such assessment committee. Out of total 100marks, 30 marks was to be awarded as per the Annual Performance https://hcservices.ecourts.gov.in/hcservices/ Appraisal Report (APAR), 30 marks was to be awarded by the PeerReview Committee and 40% marks to be awarded at the time ofinterview. It has been found by the Tribunal and not disputed beforeus that the applicant had secured 22.59 out of 30 marks relating toAPAR, 24 out of 30 marks as per the referees comments and 10 out of40 marks at the interview. For a general candidate to be eligible,one was required to score 60% marks. The applicant, thus, fell shortby 3.31 marks. The applicant challenged his non-selection inter aliaon the ground that earmarking 40 marks in the interview is arbitraryand also on the ground that low marks had been arbitrarily awarded inthe interview to the applicant because of the presence of OppositeParty No.4, who had grudge against the applicant as the applicant andother office bearers of the Association had been repeatedly raisingseveral allegations against such Opposite Party No.4.2.3 Even though the Tribunal rejected the contention of theapplicant that earmarking 40% of the marks for the interview wasarbitrary and also declined to give any categorical finding regardingmalice on the Opposite Party No.4, it has set aside the selection onthe ground that working-sheet for awarding marks had not beenproduced in spite of the direction and Opposite Party No.4 shouldnot have been a member of the Selection Committee, particularly inthe background of several allegations made against him. The Tribunalalso observed that the Selection Committee should have maintained theworking-sheets to indicate the basis for awarding of marks and in theabsence of any records, awarding of marks appears to be whimsical.The Tribunal also incidentally observed that in the process ofselection, the element of bias and prejudice had crept in anddirected for constitution of fresh Selection Commission. The decisionof the Tribunal directing constitution of a fresh Selection Committeeis being questioned by the CISR and CECRI in the present writpetition.3. Learned counsel appearing for the petitioners has raisedthe contention that the applicant himself having not objected to thepresence of Opposite Party No.4 (The Director of CECRI), theTribunal could not have permitted to challenge non-selection on theground that such Opposite Party No.4 was a member of the SelectionCommittee.4. If the presence of Opposite Party No.4 as a member ofthe Selection Committee would be the only ground on which theTribunal could have set aside the process of selection, we would havebeen inclined to accept the contention of the petitioner. In thepresent case, we find that apart from the above the Tribunal has alsocommented upon the fact that the records relating to the process ofawarding marks at the interview were not produced before the Tribunalon the ground that no such records have been maintained. The https://hcservices.ecourts.gov.in/hcservices/ Tribunal has commented that element of arbitrariness had crept inwhile awarding marks at the interview.5. Even though the Tribunal does not appear to have givenany categorical finding regarding malice on the Opposite Party No.4,there are certain conclusions of the Tribunal, which clearly indicatethat the Tribunal was inclined to accept such submission. TheTribunal has referred to the fact that the applicant and many othermembers of the staff had made several allegations against OppositeParty No.4, who was the Director of CECRI at the relevant time. Inthis context, the Tribunal concluded :"9. ... The Chairman of the selection committee wasMr.R. Narayan and below that the approval of the entireproceedings was made by the very same Director Mr.P. SubbaRao, who also functioned as one of the Members of theAssessment Committee during the interview. We find thatthis procedure does not conform to the normal rules ofselection. We are astonished to find that a Member of theAssessment Committee later on assumed the role of approvingauthority, though in between the Chairman of the Committeehappened to be a different person. In this connection wewould like to observe that there are various judicialpronouncements as also procedural rules wherein it is statedthat when certain irregularities are alleged against aparticular authority and one apprehends malice by the saidauthority, then he becomes functus officio. Under suchcircumstances the said authority should not associatehimself as a member of the assessment committee or act asthe approving authority and under such circumstances oughtto have appointed some ad hoc authority for ensuring justiceand fairplay. But in the instant case totally the reversehad taken the place and on this ground alone the proceedingsof the assessment committee are liable to be set in so faras the applicant is concerned."It was further observed :-"13. Though it has been urged that the whole issue hascome up now before the Tribunal because of the allegedindiscreet conduct of the then Director and the so calledpetitions written against him by the applicant and others,we for a moment do not want to examine those aspects atthis distant point of time. It is between the thenDirector, Scientists of the Institute and the DG of CSIRwho is the head of the organisation. https://hcservices.ecourts.gov.in/hcservices/

14. We further find that even though the applicant hasattributed individual malice against the then Director inhis individual capacity and has arrayed him as a partyrespondent No.4 in the OA, the said Mr.G.T. Subba Rao hasnot chosen to file an individual reply controverting theaverments made against him in the OA for reasons best knownto him and we do not want to go into this aspect as thesaid person had already retired from service. In otherwords whether the then Director was prejudiced against theapplicant is not the issue before us. The issue for ourprime consideration is whether the assessment was done in afair and equitable manner and in a manner known to law ornot."6. From the aforesaid discussion, it is apparent that thoughthe Tribunal had not given a categorical finding regarding individualmalice and prejudice of Opposite Party No.4, yet it had apparentlyaccepted the contention that there was some allegation of bias orprejudice against the applicant in the mind of Opposite Party No.4.In the above background, the observation of the Tribunal thatOpposite Party No.4 in his capacity as Director being the approvingauthority of the proceedings of the committee, should have nominatedhis delegate instead of being becoming a member of such Committee.7. It is of course true that the plea of mala fide is veryoften taken without sufficient materials in support of such a plea.In the present case, several allegations had been made againstOpposite Party No.4, who had been impleaded in his individualcapacity, yet notwithstanding such categorical assertion, suchOpposite Party No.4 had never chosen to file any affidavit rebuttingthe specific allegation of mala fide made against him. It is ofcourse true that at the time of filing of the O.A. Opposite PartyNo.4 is ceased to be the Director of the Opposite Party No.2 and wasserving in a University outside the country, but inspite of that hecould have entered appearance through the lawyer and filed anaffidavit, even without requirement of coming back from the foreigncountry.8. The Tribunal has also made observation that awarding ofmarks at the interview appears to be arbitrary. The fact that theapplicant had secured 22.59 out of 30 marks in APAR (about 75%), 24out of 30 marks in the Review made by the Peer Review Committee (morethan 75%), and yet he secured only 10 out of 40 marks (less than25%) at the time of interview, tells its own tale. The fact that theapplicant had been subsequently given such promotion after thedeparture of Opposite Party No.4 has also certain bearing on theabove aspect. https://hcservices.ecourts.gov.in/hcservices/

9. It is of course true that ordinarily the AdministrativeTribunal, or the High Court for that matter, is loath to interfere inthe process of selection. However, when the materials clearlyindicate that all were not well in the process of selection, thecourt of equity should not hesitate in interfering with such matter.In the present case, the Tribunal on consideration of certainrelevant aspects, in its discretion has chosen to interfere with theprocess of selection and while sitting in judgment over such decisionin a proceedings under Article 226 of the Constitution, we are notinclined to take a different view in the matter, particularly in thepeculiar facts and background of the present case.10. Since other serious allegations have been made againstOpposite Party No.4 at the behest of the applicant and some otheroffice bearers of the Association , in fitness of things, suchOpposite Party No.4 could have desisted from becoming a member of theSelection Committee. In this connection, one may refer to thedecisions of the Supreme Court reported in 1993 Supp (4) SCC 4 (V.MAHADEVAN v. D.C. AGGARWAL), wherein it was observed :"3. ... From the records produced by the learnedAdditional Solicitor General we find that the committeewhich interviewed comprised two of the persons against whomthe respondent had filed contempt petition in the HighCourt. . . . This, in our opinion, was neither proper norfair. Those officers who are occupying very high position inthe bank in all propriety should have withdrawn from thecommittee constituted for this purpose. We may not beunderstood as imputing any bias to them. But in our opinionthe principle of fairness required that they should not havesat on the Board. . . ." 11. Similar observations are also made in 1995 Supp(1) SCC21(TILAK CHAND MAGATRAM OBHAN v. KAMALA PRASAD SHUKLA). In the saidcase, the Principal of a school, who was a member of the EnquiryCommittee, was biased against the delinquent and he had also issuednotice of defamation against the delinquent. In such circumstances,it was held that the presence of the Principal in the Committee hadvitiated the atmosphere for a free and fair inquiry. It was alsoobserved that the entire inquiry was bad and the fact that there wasan appeal, did not cure the defect.12. The observation made by the Supreme Court in (2000) 8SCC 395 (BADRINATH v. GOVERNMENT OF TAMIL NADU & OTHERS) alsobuttress the above conclusion.13. We are conscious of the fact that in the SelectionCommittee, apart from the aforesaid Opposite Party No.4, there are https://hcservices.ecourts.gov.in/hcservices/ three other members and, therefore, it cannot be assumed that bias onthe part of Opposite Party No.4 could not have been in normalcircumstances permeated to others. However, since Opposite PartyNo.4 in his capacity as the Director and also the approving authorityin respect of the report of such Selection Committee, it can be wellconcluded, as has been done by the Tribunal, that his presence madeall the reference. In this context, the observation made by theSupreme Court in (1986) 4 SCC 537 (INSTITUTE OF CHARTERED ACCOUNTANTSOF INDIA v. L.K. RATNA) assumes importance.14. For the aforesaid reasons, we are unable to persuadeourselves to take a different view in the matter. The writ petitionis accordingly dismissed. Consequently, the connected miscellaneouspetition is closed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dpkToThe Registrar,Central Administrative Tribunal,Chennai Bench.+ 1 CC To Mrs.D. Nagasaila, Advocate SR NO.39166JUDGMENT IN WP.808/2001KJ {CO}TP/5.8.08