Full Judgment Text
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PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
CHOTHIA (H.P.) AND ORS. ETC. ETC.
DATE OF JUDGMENT07/04/1978
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
SINGH, JASWANT
CITATION:
1978 AIR 1214 1978 SCR (3) 652
1978 SCC (2) 586
CITATOR INFO :
E D 1987 SC 593 (10,26,27)
RF 1988 SC 535 (1,11,15,16,37)
ACT:
Indian Forest Service (Initial Recruitment) Regulation of
1966, Regulation 5, interpretation of-Whether or not the
provisions of Regulation 5(2)(b) mandatory in character-
Affidavit in support of a contention must be by a person
competent to certify.
HEADNOTE:
Respondent No. 1 was selected for Superior Forest Service of
the Government of Saurashtra in the year 1951. On 9-4-1958,
he was appointed as Assistant Conservator of Forests, Class
111. Sometime in August 1959, Respondent No. 1 was
appointed as Deputy Conservator of Forests, consequent upon
the merger of Saurashtra with Greater Bombay. On 1st May,
1956, he was allotted to the newly created State of Gujarat
and appointed as Deputy Conservator of Forests. A new
service called the Indian Forests Service was established in
1966 and Indian Forests Service Rules were made in 1966.
Respondent No. I was one of the candidates to be considered
for initial recruitment to the Indian Forests Service from
the State cadre. The Selection Board did not recommend the
selection of Respondent No. 1 and other respondents were
selected. Respondent No. 1, filed a writ petition in the
High Court of Gujarat. The High Court held that Regulation
5(2) (b) of the Indian Forests Service (Initial Recruitment)
Regulations, 1966 is mandatory and as the Selection Board
did not give reasons as enjoined by this provision, the
selection made by the Board was illegal. The selection as
well as the Notification dated January 7, 1972 were quashed
accordingly.
Dismissing the appeals, by special leave the Court
HELD : 1. The provisions of Regulation 5(2)(b) of the Indian
Forests Service (Initial Recruitment) Regulations 1966. are
mandatory in character and whenever the Board sends the
records to the Commission it must give its reasons as
required by S. 5(2)(b) of the Regulation. [65G-H]
2. (a) Regulation 5 manifestly shows that
the provision required three essential
conditions to be complied with -
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(i) that the Board shall prepare in order of
preference a list of officers of the State
Forest Service in accordance 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 officers of the State who are not
adjudged as suitable together with reasons
recorded by the Board. [655 A-C]
(b) The words "shall than be referred to the Commission for
advice by the Central Government along with" are of a
mandatory character and govern not only clause (a) but all
the other clauses viz. (b) and (c). The requirement
mentioned in clauses (a), (b) and (c). must be complied with
before the recommendation is sent to the Commission. [655C-
D]
(c) Clause (b) of Regulation 5(2) is in public interest and
has been made with a view to avoid arbitrary or capricious
exercise of discretion by the Board and also to prevent any
hostile discrimination. Clause (b) clearly states that
where eligible officers of the State Forest Service are not
found suitable, reasons must be given by the Board for their
non-inclusion in the select list. [655D]
653
K. G. Vasudevan v. State of Kerala (Unreported case No.
O.P. 2910/72 dated 1-10-1975) of the Kerala High Court);
over-ruled.
(d) The word "adjudge" is a very strong term and indicates
that the Board must be satisfied that a person is not
suitable and the requirement for giving reasons has been
enjoined for the purpose of proving that the Board was not
,only satisfied but has given grounds of its satisfaction so
as to exclude possibility of any oblique or extraneous
considerations. The Commission would also, be in a position
to know the views of the 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. Perusal by
the Board of the confidential rolls of officers and
forwarding the ,record to the commission is not substantial
compliance with the provisions of Regulation 5(2)(b).
Regulation 5(2)(b) is not an idle formality. [655 C-F]
3. In the instant case, the deponent in the affidavit, not
being a member of the Selection Board, 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 is
not complying with the mandate contained in Regulation
5(2)(b). [656 D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1329-1330
of 1977.
Appeal by Special Leave from the Judgment and Order dated
18-3-1977 and 29-4-1977 of the Gujarat High Court in Special
Civil Appeal Nos. 1080/72 and L.P.A. No. 106/77.
R. P. Bhatt and Girish Chandra for the Appellant.
R. S. Gae, P. H. Parekh, (Mrs.) Manju Sharma and C. B.
Singh for Rcspondent No. 1 in C.A. No. 1329/77.
The Judgment of the Court was delivered by
FAZAL ALI, J.-These appeals by Special leave are directed
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against the Judgment of the division Bench of the Gujarat
High Court dated- 18th March, 1977 by which writ petition
filed by respondent No. I was allowed and the impugned
selection made by the Selection Board was quashed as also
the notification dated January 7, 1972.
The facts have been detailed in the Judgment of the High
Court and it is not necessary to repeat the same all over
again. Suffice it to say that Respondent No. I was selected
for Superior Forest Service of the Government of Saurashtra
in the year 1951. On 9-4-1958, be was appointed as
Assistant Conservator of Forests, Class III. Sometimes in
August, 1959, Respondent No. 1 was appointed as Deputy
Conservator of Forests consequent upon the merger of
Saurashtra with Greater Bombay. On 1st May, 1960 the State
of Gujarat was created and Respondent No. 1 was allotted to
the Gujarat Cadre and appointed as Deputy Conservator of
Forests. Sometimes after in the year 1966, there was
amendment in the All India Service Act by which a new
service called the Indian Forests Service was established
and Indian Forests Service Rules were made in 1966. In the
instant case, we are only concerned with the interpretation
of the Regulation 5 of the Indian Forest Service (Initial
Recruitment) Regulation of 1966.
654
Respondent No. 1 was one of the candidates to be considered
for initial recruitment to the Indian Forest Service from
the State Cadre. It appears that the Selection Board did
not recommend the selection of Respondent No. 1 and other
respondents were selected. Respondent No. 1, therefore,
filed writ petition in the High Court of Gujarat for
quashing the selection made by the Selection Board.
The sole point that was urged before the High Court was that
the mandatory provisions of Regulation 5 dated 1st
September, 1966 as amended uptodate had been violated and,
therefore, the selection made by the Board was illegal. The
High Court accepted the plea taken by Respondent No. 1 and
allowed the writ petition as indicated above. The Union of
India obtained special leave of this Court and hence this
appeal before us.
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 as 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 contain
mandatory requirements for giving reasons by the Board when
it submits its recommendations to the Commission. Secondly,
it was submitted that the Selection Board on perusal of the
confidential rolls of the Respondent No. I 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 any error of law in not selecting
respondent 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 interpretation of Regulation 5(2)(b) does not
present any difficulty at all. Relevant portion of
Regulation 5 may be extracted thus:-
"5. Preparation of list of suitable officers.
1. The Board shall prepare, in the order of
preference, a list of such officers of State
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Forest Service who satisfy the conditions
specified in Regulation 4 and who are adjudged
by the Board suitable for appointment to posts
in the senior and junior scales of service.
2. The Est prepared in accordance with sub-
regulation (1) shall then be referred to the
Commission for advice, by the Central
Government alongwith
(a) the records of all officers of State
Forest Servicer included in the list;
(b) the records of all other eligible
officers of the State Forest Service who are
not adjudged suitable for inclusion in the
list, together with the-
655
reasons as recorded by the Board for their
non-inclusion in the list"
(Emphasis ours)
A perusal of Regulation 5 manifestly shows that the
provision requires 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 accordance 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 officers 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 alongwith" appear to be of
a mandatory character and govern not only cl. (a) but all
the other clauses viz. (b) and (c). Thus, a plain
interpretation of regulation 5 would show that the
requirements mentioned in cls. (a), (b) and (c) must be
complied with before the recommendation is sent to the
Commission. Cl. (b) clearly states that where eligible
officers of the State Forest 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 capricious exercise of discretion by the Board,
and also to prevent any hostile discrimination. The word
’adjudge’ is a very strong term and indicates that the Board
must be satisfied that a person is not suitable and the
requirement for giving reasons, has been enjoined for the
purpose of proving that the Board was not only satisfied but
has given grounds of its satisfaction so as to exclude
possibility of any oblique or extraneous 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 the 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 circumstances we are satisfied that the
provisions for giving reasons by Regulation 5 (2) (b) are
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mandatory and must be complied with. It is 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 unreported decision of the Kerala High
Court where, in a very summary fashion, the said High Court
has held that there was no requirement
656
in the Regulation that reasons should be given. In this
connection, the High Court of Kerala observed as follows :-
"It is to be observed that there is no such
requirement in the Rules with which we are
concerned in the instant case. Being so, it
would be inappropriate to import any require-
ment of recording of reasons-for selection in
this case." (Vide K. G. Vasudevan vs. State
of Kerala & Ors. 0 P 2910/72 dt. 1-10-75)
The High Court does not appear to have applied its mind to
the language used in S. 5 (2) (b) of the 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 his name in the
select list. In the first place, the affidavit appears to
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 lie would not at all be conversant with the
manner in which the recommendation was made ignoring the
Respondent No. 1. Nor had he any knowledge of the way in
which the mind of the Board was working at that time. 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 in 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 absolutely 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 bad given an opportunity to the
appellant to produce the records before it so as to find out
if the confidential records of the Respondent No. I 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 somewhat obscure.
For these reasons, we find ourself in complete agreement
with the judgment of the High 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 Commission, it must give
its reasons as required by s. 5 (2) (b) of the Regulation.
The result is that the appeals fail and are dismissed with
costs to Respondent No. I only in civil Appeal No. 1329/77.
S. R. Appeal dismissed.
657
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