Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3968/2012
Reserved on : 09.09.2014
Pronounced on : 07.11.2014
IN THE MATTER OF :
MADAN MOHAN ..... Petitioner
Through : Mr. Shankar Raju with
Mr. Nilansh Gaur, Advocates
versus
UNION OF INDIA AND ORS. ..... Respondents
Through : Mr. Sanjay Jain, ASG with
Mr. Jasmeet Singh, Ms. Aastha Jain and
Ms. Ruchi Jain, Advocates for UOI.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.
1. The present petition has been filed by the petitioner praying inter
alia for quashing of the order dated 23.4.2012 issued by the
Appointments Committee of the Cabinet (in short ‘the ACC’ ), in
supersession of its earlier order dated 19.3.2012, whereunder he was
appointed as a Director (Finance) in the respondent No.2/Security
Printing Minting Corporation of India Ltd. (SPMCIL) for a period of five
years from the date of his assuming charge of the post or till his
superannuation, and proceeding to approve the appointment of the
respondent No.3 to the very same post.
WP(C) 3968/2012 Page 1 of 32
2. Before dealing with the arguments advanced by the learned
counsels for the parties, it is considered necessary to recapitulate the
relevant facts of the case and some events that have transpired during
the pendency of the present petition. The petitioner herein is an officer
of the Indian Civil Accounts Service Group-„A‟ (1986 Batch). On
23.4.2007, he was appointed for a period of two years, as Director
(Finance) on deputation basis with the respondent No.2/SPMCIL. The
said term was extended by the ACC till 13.10.2011. The post of
Director (Finance) is a Schedule-„A‟ post and the said Officer is a
Member of the Board of Directors. Being the overall in-charge of
finance and accounts functions of the organization, the petitioner was
expected to directly report to the Chairman and Managing Director of
the respondent No.2/SPMCIL. On 30.12.2010, the Public Enterprise
Selection Board (PESB) advertised the post of Director (Finance) in the
respondent No.2/SPMCIL. On 21.2.2011, the petitioner applied for the
aforesaid post through proper channel and was shortlisted by the PESB
for an interview that was held on 18.4.2011. Thereafter, the PESB
prepared a panel for appointment to the subject post, wherein the
petitioner‟s name was placed at serial No.1 and that of the respondent
No.3 was placed at serial No.2. There was no movement between May,
2011 to January, 2012 on account of some delay that took place for
obtaining vigilance clearance in respect of the petitioner from the
WP(C) 3968/2012 Page 2 of 32
Central Vigilance Commission (CVC). Finally, on 9.1.2012, the CVC
advised issuance of vigilance clearance to the petitioner for the post of
Director (Finance) in the respondent No.2/SPMCIL.
3. Vide order dated 19.3.2012, the ACC approved the appointment
of the petitioner as Director (Finance) in the respondent No.2/SPMCIL.
Though, a copy of the aforesaid order was forwarded for information to
different departments, including the PMO, Office of the Home Minister,
Cabinet Secretariat and the PESB, but the same was not communicated
to the petitioner. In a sudden turn of events, the ACC decided to
supersede its order dated 19.3.2012 and passed an order dated
23.4.2012, whereunder respondent No.3 was appointed as Director
(Finance). This was followed by a communication dated 27.4.2012
addressed by the Ministry of Finance to the respondent No.3, conveying
the approval of the ACC for his appointment to the post of Director
(Finance) in the respondent No.2/SPMCIL.
4. The grievance of the petitioner is that once his name was
approved by the ACC for appointment to the post of Director (Finance)
in the respondent No.2/SPMCIL, the respondents No.1 & 2 could not
have issued the impugned order dated 23.4.2012, superseding the
earlier order dated 19.3.2012 and the said action is illegal and a nullity,
more so because before passing the said order, the ACC did not
furnish/mention any reason for superseding its earlier order dated
WP(C) 3968/2012 Page 3 of 32
19.3.2012.
5. When the present writ petition was listed for admission on
9.7.2012, an interim order was passed on the interlocutory application
for stay filed by the petitioner, directing that till the next date of
hearing, the respondents would not allow the respondent No.3 to join, if
he had not already joined. On 5.7.2013, a statement was made on
behalf of the respondent No.1/UOI to the effect that the respondent
No.3, whose name was approved by the ACC for appointment in
preference to the petitioner, had expressed his unwillingness for being
appointed to the subject post. Subsequently, an affidavit dated
21.8.2013 was filed by the respondent No.3 himself stating inter alia
that later on, the ACC had approved his appointment to the post of
Director (Finance) in HUDCO and since he had joined the said post on
30.5.2013, he was no longer interested in the subject post. Though the
respondent No.3 moved out of the picture, the learned ASG appearing
for the respondent No.1/UOI informed the Court that the department
had decided to contest the present petition on merits.
6. On 26.9.2013, taking note of the fact that the order dated
19.3.2012 issued by the ACC appeared to have been circulated to
various departments, directions were issued to the parties to file their
respective affidavits clarifying inter alia as to whether the said decision
had at all been circulated. In compliance of the said order, both the
WP(C) 3968/2012 Page 4 of 32
parties had filed their respective affidavits taking different stands.
Thereafter, pleadings were directed to be completed and the matter was
taken up for final arguments. After conclusion of arguments, the
judgment was reserved on 05.08.2014. However, on 02.09.2014, the
petitioner filed an application seeking permission to file some additional
documents that he had obtained through the RTI route. The said
documents included copies of O.Ms dated 07.12.2011 and 05.08.2014
issued by the CVC and an extract of the relevant notings of the CVC file.
The said application was allowed on 09.09.2014 and the documents in
question were taken on record.
7. The first and foremost ground taken by Mr. Shanker Raju, learned
counsel for the petitioner to assail the impugned order dated 23.4.2012
was that the previous order dated 19.3.2012, appointing the petitioner
to the subject post, was a final order as copies thereof were marked to
different departments, and circulation of the said order had amounted
to publication. Therefore, the order dated 19.03.2012 ought to be
treated as a “communication” to the petitioner, irrespective of the fact
that it was not communicated directly to him. He stated that while
adverse orders need to be communicated as the same is a mandatory
requirement, a positive order, as was passed in the present case, need
not necessarily be communicated in writing to the addressee and
publication thereof would meet the requirements. It was thus urged
WP(C) 3968/2012 Page 5 of 32
that the order dated 19.03.2012 had attained finality and could not be
superseded by the ACC. To buttress the said argument, reference was
made to the decision of the Supreme Court in the case of State of
Punjab vs. Amar Singh Harika, reported as AIR 1966 SC 1313 .
8. Learned counsel contended that in the present case, apart from
the fact that copies of the order dated 19.3.2012 issued by the ACC had
been marked to various departments, “communication” thereof would
include publication in the website of a private portal and looked at in
this background, non-intimation of the said order to the petitioner
looses significance. Reference was made by him to the impugned order
dated 23.4.2012 issued by the ACC to urge that the very fact that the
said order had mentioned that it was being issued in supersession of its
earlier order dated 19.3.2012 appointing the petitioner to the post of
Director (Finance), fortifies his stand that communication of the order
dated 19.3.2012 had already been made to him and had created a
vested right in his favour that could not be disturbed. In support of the
aforesaid submission, learned counsel had cited the decision of the
Supreme Court in the case of Municipal Corporation of Delhi vs. Qimat
Rai Gupta & Ors., reported as (2007) 7 SCC 309 .
9. The second limb of the argument of the counsel for the petitioner
was that the impugned order dated 23.4.2012 issued by the ACC is
liable to be set aside as it was passed without following the due process
WP(C) 3968/2012 Page 6 of 32
and without the participation of all its members, which is a mandatory
requirement. He had quoted Rule 6(6) of the Government of India
(Transaction of Business) Rules, 1961 (in short ‘the Rules’ ) to contend
that the power of review was specifically conferred upon the Cabinet but
no such power was exercised in the present case and therefore an
irregular ACC had cleared the appointment of the respondent No.3 on
23.4.2012, by reversing its earlier recommendation dated 19.3.2012,
which was the only valid order on record.
10. To substantiate his submission that once the ACC passes an
order, the same attains finality and ought to be implemented with
promptitude, learned counsel had referred to an Office Memorandum
dated 10.2.1991 issued by the Department of Personnel and Training
(DOPT), Government of India, which lays down the procedure for
implementation of the decision of the ACC and directs that it should be
ensured that such an order is endorsed to the concerned department
within fifteen days of its receipt. The OM mentions that ordinarily, the
Ministries/departments should avoid sending the proposal for
reconsideration of the decisions of the ACC so that the same can be
implemented immediately on their receipt. It was thus submitted by
the learned counsel for the petitioner that once the ACC had approved
the name of the petitioner for the subject post, a valuable right
enforceable in law had arisen in his favour and the same could not be
WP(C) 3968/2012 Page 7 of 32
defeated by recalling the said order through an irregularly conducted
ACC. To reinforce his arguments, the following citations were referred
to by the learned counsel for the petitioner :
(i) Prem Prakash vs. Union of India & Ors., 1984
(Supp.) 687,
(ii) Asha Kaul (Mrs.) & Another vs. State of Jammu &
Kashmir & Others, (1993) 2 SCC 573 ,
(iii) R.S. Mittal vs. Union of India, 1995 (Suppl.) 2 SCC
230,
(iv) A.P. Aggarwal vs. Govt. of NCT of Delhi & Anr.,
(2000) 1 SCC 600, and
(v) Noida Entrepreneurs Association vs. Noida & Ors.,
(2011) 6 SCC 508 .
11. Per contra, Mr. Sanjay Jain, learned ASG opened his arguments
by explaining the procedure adopted by the Government for notifying
appointments of candidates to Board Level posts in Public Sector
Undertakings (PSUs). He submitted that the ACC comprises of the
Prime Minister, Home Minister and the Minister in-charge of the
concerned Administrative Ministry/department and the proposals of
different Ministries/departments for appointment to Board Level posts in
PSUs under their administrative control are approved by adopting the
process of circulation wherein, the Office of Establishment Officer acts
as the secretariat to the ACC. Once a decision is taken by the ACC, the
same is communicated to the concerned Ministry/department through a
WP(C) 3968/2012 Page 8 of 32
note/communication and based on the said communication, the
concerned Administrative Ministry/department issues an offer of
appointment to the selected candidates and only thereafter is the said
appointment notified.
12. Learned ASG pointed out that in the present case, the decision
taken by the ACC on 19.3.2012, recommending the name of the
petitioner for appointment to the subject post, being confidential in
nature, was only communicated to the Secretary of the Department of
Economic Affairs (DEA) and to those officers who were involved in the
process of appointment of Board Level Executives. However, at no
stage had the said decision been circulated/communicated to the
petitioner. He refuted the argument advanced by the learned counsel
for the petitioner that once copies of the order dated 19.3.2012 were
marked to different departments, including the PMO and the petitioner‟s
appointment had appeared in the news circulated by an online
magazine portal, the same ought to be treated as a “communication” to
the petitioner and was not only sufficient for him to claim a vested right
to the subject post, it also entitled him to raise a grievance with regard
to the violation of the principles of natural justice, on account of non-
grant of an opportunity of hearing to him, before passing a fresh order
on 23.4.2012.
WP(C) 3968/2012 Page 9 of 32
13. Learned ASG argued that even after the recommendation was
made by the ACC in his favour by virtue of its order dated 19.3.2012,
the petitioner could not have claimed that his appointment to the
subject post was finalized for the reason that admittedly, no letter
communicating the offer of appointment was ever issued to him. To
substantiate his argument that when an order of appointment is not
conveyed to a party, he cannot claim that he is entitled to appointment
or raise a plea of infringement of a vested right, reference was made to
the following decisions:
(i) Bachhittar Singh vs. State of Punjab & Anr., AIR
1963 SC 395 and
(ii) Gulabrao Keshavrao Patil & Ors. vs. State of Gujarat &
Ors., (1996) 2 SCC 26 .
14. It was next submitted by the learned ASG that just as the Rules
empower the ACC to make appointments, the said Rules also empower
the ACC to review its own decision and in the present case, the
Administrative Ministry in question was the Ministry of Finance and the
Minister in-charge was the then Finance Minister who was well within his
right to recommend the name of the respondent No.3 to the subject
post on the ground that he was academically and professionally better
qualified.
WP(C) 3968/2012 Page 10 of 32
15. So as to understand how the events had unfolded in the present
case between two crucial dates, i.e., 19.3.2012, the date when the ACC
had initially recommended the petitioner‟s name for appointment to the
subject post and 23.4.2012, the date when the ACC had recommended
the name of the respondent No.3 to the very same post, in
supersession of its earlier decision, the learned ASG was directed to
produce the records and explain the circumstances. On 5.8.2014, the
relevant records were produced by the learned counsel for the
respondent for the perusal of the Court.
16. To explain the background in which the impugned order dated
23.4.2012 was passed by the ACC, learned ASG had submitted that the
then Finance Minister, being the Minister in-charge had approved the
petitioner‟s name for appointment to the subject post. But as per the
prescribed procedure, the said recommendation could have been made
to the ACC only after obtaining the approval of the CVC and at that
point of time, vigilance clearance in respect of the petitioner was not
received for the reason that an inquiry was pending against him with
the CVC.
17. The aforesaid position was also taken note of by the department
on 6.9.2011. Since the department was of the opinion that the post of
Director (Finance) in the respondent No.2/SPMCIL could not be left
WP(C) 3968/2012 Page 11 of 32
unmanned for so long, the ACC was requested to extend the deputation
period of the petitioner for six months w.e.f. 1.7.2011 or till the regular
incumbent would join the post, whichever was earlier. However, the
ACC did not accede to the said proposal and resultantly, the petitioner
was repatriated to his parent cadre w.e.f. 13.10.2011. In the
meantime, having regard to the urgent need to fill up the post of
Director (Finance) in the respondent No.2/SPMCIL on a regular basis,
the Administrative Ministry was of the opinion that it could not wait
indefinitely for vigilance clearance proceedings to conclude in respect of
the petitioner, particularly since the vigilance clearance in respect of
other candidate, i.e., respondent No.3, was already available. As a
result, on 12.9.2011, the Administrative Ministry forwarded a reference
to the DOPT requesting that the ACC‟s approval may be obtained for
appointment of the respondent No.3 to the subject post on a regular
basis. But, vide order dated 19.3.2012, the ACC conveyed its approval
for the appointment of the petitioner as Director (Finance) of the
respondent No.2/SPMCIL.
18. The records reveal that immediately thereafter, vide note dated
2.4.2012, the then Finance Minister wrote to the Prime Minister
requesting him to reconsider the aforesaid decision to appoint the
petitioner to the subject post on the ground that as a Minister in-charge
of the Administrative Ministry, it was respondent No.3 whose name was
WP(C) 3968/2012 Page 12 of 32
recommended by him to the subject post and not that of the petitioner.
The justification offered for recommending the name of respondent
No.3 to the subject post over the petitioner was that he was better
qualified, both academically and professionally and in view of the fact
that the respondent No.2/SPMCIL is a security sensitive organization,
that is engaged in the sovereign function of minting and printing of
coins and currency, respondent No.3 was considered a better choice.
19. Learned ASG pointed out that the very same file containing the
note dated 2.4.2012, addressed by the Ministry of Finance to the then
Prime Minister, also contained a note dated 21.3.2013, prepared by the
Directorate of Currency on the issue of initiation of action against five
senior officers of the respondent No.2/SPMCIL, including the petitioner
herein, for alleged procedural lapses in the procurement procedure
relating to purchase of One Line Printing and Furnishing Plant and
Machinery for the Bank Note Press, Dewas. The said note made a
mention of the fact that the Chief Vigilance Officer of the Department of
Economic Offences had directed that disciplinary action be taken against
five officers, including the petitioner herein, and after considering the
inputs received from the Vigilance Section, it was observed that in view
of certain procedural and administrative lapses in the tendering process
for procurement of the plant and machinery, there was a ground to
initiate action against the officers involved, including the petitioner
WP(C) 3968/2012 Page 13 of 32
herein.
20. As per the learned ASG, with the approval of the then Finance
Minister and the competent authority, a decision was taken to initiate
action against the petitioner for entering into a criminal conspiracy and
causing pecuniary loss to the respondent No.2/SPMCIL and the
Department of Expenditure, who has administrative control over him,
was requested to issue a charge sheet against him.
21. After the judgment was reserved in this case on 5.8.2014, learned
counsel for the petitioner had filed CM No.14699/2014, enclosing
therewith a copy of the OM dated 07.12.2011 issued by the CVC
advising closure of the complaint regarding irregularities in the
procurement of One Line Printing Machine and suggesting rectification
of procedural and administrative deficiencies in the tendering
procedure. A copy of O.M. dated 05.08.2014 issued by the CVC was
also filed by the petitioner. In the said O.M., the CVC expressed a view
that there is no ground for seeking ex-post facto approval of the
charge-sheets and if the department wanted to re-open the case and
charge-sheet the officials, they ought to have sought the advice of the
Commission before doing so. It was submitted by Mr.Shankar Raju,
Advocate that the aforesaid documents were obtained by the petitioner
through the RTI route and the information was furnished by the
Department only after 5.8.2014.
WP(C) 3968/2012 Page 14 of 32
22. Learned counsel for the respondent did not object to the court
taking on record the aforecited documents but stated that the said
documents would not make any material difference as most of them
relate to the period post 23.4.2012, when the impugned order was
issued by the ACC.
23. This Court has heard the arguments advanced by the counsels for
the parties, perused the records produced by the learned counsel for
the respondents and examined the judicial pronouncements relied upon
by both sides.
24. It may be stated at the outset that there is no quarrel with the
submission made by the learned counsel for the petitioner that without
good and valid reason, the Government cannot nullify the exercise
undertaken by the concerned Department that is called upon to prepare
a select list of candidates for appointment to particular posts. Further,
the State actions are required to be non-arbitrary and justified on the
touchstone of Article 14 of the Constitution of India and they must be in
conformity with the same principles that meet the test of reason and
relevance. To put it differently, the action/order of the State/
instrumentality of State would be vitiated if it suffers from the vice of
arbitrariness or if there is a colourabsle exercise of power. Therefore,
the decisions of the Supreme Court cited by the learned counsel for the
WP(C) 3968/2012 Page 15 of 32
petitioner on the aforesaid aspect, including those in the case of Prem
Prakash (supra), Asha Kaul (supra), R.S. Mittal (supra), A.P. Aggarwal
(supra) and Noida Entrepreneurs Association (supra) need not detain
this Court for too long as they enunciate the settled judicial principles of
service jurisprudence that have been consistently followed, on the issue
of testing the State action on the anvil of non-arbitrariness, good faith
and bonafide exercise of power when examining the decisions of the
Government of filling up/declining to fill up the vacancies that may have
arisen in a particular organization/PSU etc. from a select panel. The
only caveat is that mere inclusion in the select list does not confer upon
the candidates included therein, an indefeasible right to appointment.
25. The first question that falls for consideration in the instant case is
whether the order dated 19.3.2012 issued by the ACC recommending
the name of the petitioner for appointment to the post of Director
(Finance) in the respondent No.2/SPMCIL amounted to a
“communication” to the petitioner for vesting a legal right in him. It is
settled law that for an order passed by the State or its functionaries to
be effective, the same must be communicated to the person who would
be affected by that order and until the order is so communicated, it
remains provisional in nature and it would be open to the concerned
authority to reconsider the matter and recall/alter the order. In the
well celebrated decision of a Constitution Bench of the Supreme Court in
WP(C) 3968/2012 Page 16 of 32
the case of Bachhittar Singh (supra), the Supreme Court made the
following observations :-
“9. The question, therefore, is whether he did in
fact make such an order. Merely writing
something on the file does not amount to an
order. Before something amounts to an order of
the State Government, two things are necessary.
The order has to be expressed in the name of
the Governor as required by cl.(1) of Art. 166
and then it has to be communicated. As already
indicated, no formal order modifying the
decision of the Revenue Secretary was ever
made. Until such an order is drawn up, the State
Government cannot in our opinion, be regarded
as bound by what was stated in the file . As long
as the matter rested with him, the Revenue Minister
could well score out his remarks or minutes on the file
and write fresh ones.
10. The business of State is a complicated one and
has necessarily to be conducted through the agency of
a large number of officials and authorities. The
Constitution, therefore, requires and so did the Rules
of Business framed by the Rajpramukh of Pepsu
provide, that the action must be taken by the
authority concerned in the name of the Rajpramukh.
It is not till this formality is observed that the action
can be regarded as that of the State or here, by the
Rajpramukh. We may further observe that,
constitutionally speaking, the Minister is no more than
an advisor and that the head of the State, the
Governor or Rajpramukh, is to act with the aid and
advice of his Council of Ministers. Therefore, until
such advice is accepted by the Governor whatsoever
the Minister or the Council of Ministers may say in
regard to a particular matter does not become the
action of the State until the advice of the Council of
Ministers is accepted or deemed to be accepted by the
Head of the State. Indeed, it is possible that after
expressing one opinion about a particular matter
at a particular stage, a Minister or the Council of
WP(C) 3968/2012 Page 17 of 32
Ministers may express quite a different opinion
one which may be completely opposed to the
earlier opinion. Which of them can be regarded
as the ‘order’ of the State Government?
Therefore, to make the opinion amount to a
decision of the Government, it must be
communicated to the person concerned ………..”
(emphasis added)
26. The aforesaid observations were made after taking into
consideration an earlier decision of the Constitution Bench of the
Supreme Court in the case of State of Punjab vs. Sodhi Sukhdev Singh,
reported as AIR 1961 SCC 493 , relevant extract whereof reads as
under :
“(42). …………..Mr. Gopal Singh attempted to
argue that before the final order was passed, the
Council of Ministers had decided to accept the
respondent‟s representation and to reinstate him, and
that, according to him, the respondent seeks to prove
by calling the two original orders. We are unable to
understand this argument. Even if the Council of
Ministers had provisionally decided to reinstate
the respondent that would not prevent the
Council from reconsidering the matter and
coming to a contrary conclusion later on, until a
final decision is reached by them and is
communicated to the Rajpramukh in the form of
advice and acted upon by him by issuing an
order in that behalf to the respondent. Until the
final order is thus communicated to the
respondent it would be open to the Council to
consider the matter over and over again, and the
fact that they reached provisional conclusions
on two occasions in the past would not alter the
character of the said conclusions . The said
conclusions, provisional in character, are a part of the
WP(C) 3968/2012 Page 18 of 32
proceedings of the Council of Ministers and no
more………….” (emphasis added)
27. In the case of Gulabrao Keshavrao Patil (supra), relied upon by
the respondents, while dealing with the question as to whether it could
be said that the State of Gujarat had taken a decision on the objections
raised by the appellants therein under the Land Acquisition Act, 1894,
the Supreme Court had discussed as to how the Cabinet, known as the
Council of Ministers, is the driving and steering body responsible for the
governance of the country and is, as a whole, collectively responsible
for the advice rendered to the President of India for conduct of business
of each department. In the context of a Council of Ministers with the
Chief Minister at its head to aid and advice the Governor in exercise of
its functions, it was noted that before the action or the decision is
expressed in the name of the Governor as prescribed in the Business
Rules and communicated to the concerned party, by necessary
implication it is open to the Chief Minister to send for the file, examine
it by himself or take a decision, even though the subject was allotted to
a particular Minister for convenient transaction of the business of the
Government, the ultimate object being to secure an impartial, pure and
efficient system of administration.
28. In the aforesaid decision, reference was also made to the decision
of the Constitution Bench in the case of Bachhittar Singh (supra),
WP(C) 3968/2012 Page 19 of 32
wherein it was held that the order must be expressed in the name of
the Governor, as required under Clause (1) of Article 166 of the
Constitution of India and then it has to be communicated, and till the
said order is drawn up in accordance with law, the State Government
cannot be regarded as bound by what it had stated in the file.
Therefore, until the advice is accepted by the Governor, whatever the
Minister or the Council of Ministers may say with regard to adopting a
particular manner, it does not become the action of the State until the
said advice is accepted by the head of the State. Thus, the order
passed by the Chief Minister, even though it is a matter pertaining to
the portfolio of the Revenue Minister, would be deemed to be an order
of the Council of Ministers and its contents would be the Chief Minister‟s
advice to the Governor for which the Council of Ministers would be
collectively responsible. The view taken above was reiterated by the
larger Bench of seven Judges in the case of State of Karnataka vs.
Union of India, reported as (1977) 5 SCC 608 .
29. Similarly, in the case of Kedar Nath Bahl vs. State of Punjab,
reported as (1978) 4 SCC 336 , a three-Judge Bench of the Supreme
Court held that expression of an order in the name of the Governor as
required by Article 166 of the Constitution of India and communication
thereof to the party affected thereby are conditions precedent for the
said order to bind the Government. In the aforesaid case, the order
WP(C) 3968/2012 Page 20 of 32
initially made by the Minister was cancelled by the Chief Minister before
it was communicated, and the said order was upheld to be legal. A
similar view was taken in the case of State of Kerala vs. A.
Lakshmikutty, reported as (1986) 4 SCC 632 .
30. The court may usefully refer to another decision of the Supreme
Court in the case of Tagin Litin vs. State of Arunachal Pradesh & Ors.,
reported as (1996) 5 SCC 83 , where it had the occasion to examine a
case where the Deputy Commissioner, State of Arunachal Pradesh being
the competent authority under Clause 5(1) of the Assam Frontier
(Administration of Justice) Regulation 1945, had approved the
appointment of the petitioner therein as the Head Gaonburah and,
without issuing a formal appointment order, directed the Additional
Deputy Commissioner to inform the petitioner about the said approval.
However, before such an information could be communicated to the
petitioner, with a view to ensure a free and fair selection by considering
a rival claim to that post, the Deputy Commissioner restrained the
communication of the approval to the petitioner and thereafter by
another order, he had appointed the rival claimant as the Gaonburah.
31. In the aforesaid case, the question that arose for consideration by
the Supreme Court was whether by virtue of the order dated 15.2.1994,
the petitioner therein could be treated as having been appointed as the
Head Gaonburah and by passing the subsequent order dated 19.4.1994,
WP(C) 3968/2012 Page 21 of 32
he was removed from the said post. After placing reliance on the
decision of the Constitution Bench in the case of Bachhittar Singh
(supra), the Supreme Court had observed that an appointment to a
post or office postulates three steps: (a) a decision by the competent
authority to appoint a particular person; (b) incorporation of the said
decision in an order of appointment; and (c) communication of the
order of appointment to the person who is being appointed and all the
three requirements must be fulfilled for an appointment to be effective.
32. In the instant case, vide order dated 19.3.2012, the ACC had
recommended the name of the petitioner for being appointed as
Director (Finance) in the respondent No.2/SPMCIL. Subsequently, vide
order dated 23.4.2012, the ACC had superseded its earlier
recommendation dated 19.3.2012 and proceeded to recommend the
name of the respondent No.3 for appointment to the very same post.
This was followed by a communication dated 27.4.2012 addressed by
the Ministry of Finance to the respondent No.3, conveying the ACC‟s
approval to his appointment to the subject post.
33. Given the aforesaid facts, conditions (a) & (b) mentioned in the
case of Tagin Litin(supra), for appointment to a post/office stand
satisfied in the present case. The only question that remains is
whether the litmus test prescribed in condition (c) with regard to
communication of the order to the petitioner, was satisfied before the
WP(C) 3968/2012 Page 22 of 32
order dated 23.4.2012 came to be passed, whereunder respondent No.3
was appointed to the subject post. For coming to any conclusion in
respect of fulfillment of the third condition as stipulated above, it is
necessary to examine the submission made by learned counsel for the
petitioner that irrespective of the fact that the recommendations made
by the ACC, vide order dated 19.3.2012, had not been communicated
directly to the petitioner, the said order had become final on its
circulation to other Ministries and departments and on its
announcement on the website of a private portal, and this should be
deemed to be a communication to him.
34. Going back to the case of Bachhittar Singh (supra), it was
observed therein that until an order is communicated to the person
affected by it, it would be open to the concerned authority to consider
the matter over and over again. Following the said judicial dicta, this
Court is of the opinion that unless and until the recommendations made
by the ACC translate into some concrete action on the part of the
State/authority by issuance of a communication to the person
concerned informing him of his appointment, the said recommendation
cannot be regarded an order of the competent authority, as it still
remains open for consideration and subject to change.
35. In the instant case, before the recommendations made by the
ACC, vide order dated 19.3.2012, were acted upon, the same were
WP(C) 3968/2012 Page 23 of 32
superseded by virtue of the order dated 23.4.2012 that was duly
conveyed to the respondent No.3 in the form of a communication dated
27.4.2012, addressed by the Ministry of Finance. It is apparent from the
facts of the case that prior to issuance of the order dated 23.4.2012,
there was no communication of the order dated 19.3.2012 made to the
petitioner with regard to the recommendation made by the ACC for his
appointment as Director (Finance) in the respondent No.2/SPMCIL.
When the decision dated 19.3.2012 recommending the petitioner‟s
appointment to the subject post, was never communicated to him
directly, it has to be held that it had remained provisional/tentative in
nature and the petitioner cannot argue that an indefeasible right had
accrued in his favour that would entitle him to the appointment.
36. For the aforesaid reason, the contention of the learned counsel for
the petitioner that an adverse order needs to be communicated but a
positive order need not necessarily be communicated in writing to the
addressee, is turned down being devoid of merits. Nor is the Court
persuaded by the stand taken by the petitioner that even in the absence
of non-communication of an order, based on the recommendation made
by the ACC, a vested right had accrued in his favour and the said order
could not be rescinded by the competent authority without affording an
opportunity of hearing to him.
37. The decision in the case of Amar Singh Harika (supra) relied upon
WP(C) 3968/2012 Page 24 of 32
by learned counsel for the petitioner would not be of any assistance as
it does not state that a positive order passed in a case need not
necessarily be communicated in writing to the addressee and
publication thereof would meet the requirement. In the said case, a
copy of the respondent‟s dismissal order was forwarded to six persons
noted thereunder, but a copy of the same was not sent to the
respondent himself. In the said factual matrix, the Supreme Court had
observed that mere passing of an order of dismissal would not be
effective unless and until it is published and communicated to the officer
concerned and that an order of dismissal passed by an appropriate
authority and kept with itself, cannot be said to take effect unless the
officer concerned knows about the said order or it is otherwise
communicated to all parties concerned. The court had pointed out the
perils and pitfalls of passing of an order of dismissal kept by the
appropriate authority in its file, without communicating it to the officer
concerned or otherwise publishing it and observed that it will take effect
from the date when the same was actually written out by the said
authority. The aforecited decision does not deal with the converse
situation where an order recommending appointment was not
communicated to the person concerned.
38. This Court is not persuaded by the arguments advanced by the
counsel for the petitioner that merely because a copy of the order dated
WP(C) 3968/2012 Page 25 of 32
19.3.2012 was forwarded for information to some departments, it would
amount to publication thereof. Copies of the order dated 19.3.2012
issued by the ACC, recommending the petitioner‟s name for
appointment to the subject post were only conveyed within the
departments and the concerned Ministries, but such a communication
can hardly be treated as a “publication”, as sought to be urged by the
petitioner.
39. Similarly, the decision of the Supreme Court in the case of Qimat
Rai Gupta (supra) would also not advance the case of the petitioner as
in the said case, it was observed that communication of an order is a
necessary ingredient for bringing an end result to a status and to
provide an opportunity to a person to take recourse to law if he is
aggrieved thereby, the said order is required to be “communicated”.
40. Coming to the argument of the learned counsel for the petitioner
that an irregular ACC had cleared the name of the respondent No.3 for
appointment to the subject post and the order dated 23.4.2012 was
passed by the ACC without following the due process and without
participation of its members, in the light of the decisions of the
Supreme Court in the cases of Bachhittar Singh (supra), Gulabrao
Keshavrao Patil (supra), Kedar Nath Bahl (supra) and A. Lakshmikutty
(supra), the said submission is found to be fallacious. It may be
emphasized that the business of the State is very intricate and has to
WP(C) 3968/2012 Page 26 of 32
be conducted through the agency of a large number of officials and
authorities. In the case of the ACC, the constituents are the Prime
Minster, Home Minister and the Minster In-charge of the concerned
Administrative Ministry/Department. When it comes to Board level
appointments to posts in PSUs, it is the ACC that finally recommends
the name of the concerned officer for appointment, through the office of
the Establishment Office that acts as a Secretariat to the ACC. Further,
in the matters of appointment to Board level posts, the role of the CVC
is pivotal. The CVC is required to act as a watchdog and ensure that
persons appointed to Board level posts have an unimpeachable
integrity. Thus, clearance by the CVC from the vigilance angle has been
made mandatory and cannot be dispensed with under any
circumstances.
41. In the present case, as noted above, after the subject post was
advertised by the PESB and all the applications scrutinized, a panel for
appointment was prepared where the petitioner‟s name was placed at
Sr. No.1 and that of the respondent No.3 was placed at Sr. No.2.
Between May, 2011 to January, 2012, no progress was made as
vigilance clearance was not received in respect of the petitioner, though
the same was received in respect of the respondent No.3. Due to the
urgency expressed by the Department of Economic Affairs to fill up the
WP(C) 3968/2012 Page 27 of 32
post of Director (Finance) on a regular basis for the efficient functioning
of the respondent No.2/SPMCIL, a proposal was forwarded by it to the
DOPT on 12.9.2011 recommending the name of the respondent No.3 for
appointment to the subject post. In October, 2011, the DOPT
requested the Ministry of Finance for details of the case regarding the
complaint in respect of the petitioner, pending with the CVC and the
CVO of the department and the said information was furnished to the
Ministry on 13.10.2011.
42. After about two months, vide letter dated 6.1.2012, the DOPT
informed the Ministry that the proposal for appointment of the
respondent No.3 to the said post had been submitted to the ACC.
However, the Ministry of Finance reiterated the name of the respondent
No.3 for appointment to the post of Director (Finance) on the ground
that he was academically and professionally better qualified. In the
meantime, vide O.M. dated 19.3.2012, the ACC Secretariat conveyed
the appointment of the petitioner to the subject post.
43. Immediately thereupon, the then Finance Minister had prepared a
disagreement note dated 2.4.2012 stating inter alia that the name of
the respondent No.3 had been recommended to the subject post and
not that of the petitioner. The said note was placed before the Prime
Minster and the order dated 19.3.2012 was superseded by the order
WP(C) 3968/2012 Page 28 of 32
dated 23.4.2012, wherein the ACC recommended the name of the
respondent No.3 to the subject post. Apart from explaining the
circumstances in which the order dated 19.3.2012 was
recalled/superseded and the order dated 23.4.2012 came to be passed,
much emphasis was laid by learned ASG on the fact that departmental
proceedings were contemplated against the petitioner and vide note
dated 21.3.2013, the Directorate of Currency had mentioned the fact
that the Chief Vigilance Officer of the Department of Economic Offences
had directed that disciplinary action be initiated against five officers,
including the petitioner herein, for alleged procedural lapses in the
procurement procedure relating to purchase of One Line Printing and
Furnishing Plant and Machinery for the Bank Note Press, Dewas.
44. The Court was informed that with the approval of the then
Finance Minister and the competent authority, a decision had been
taken to initiate departmental action against the petitioner for causing
pecuniary loss to the respondent No.2/SPMCIL and the Department of
Expenditure. At that stage, learned counsel for the petitioner had
referred to an O.M. dated 7.12.2011 issued by the CVC, wherein on the
complaint regarding irregularities in the procurement of One Line
Printing Machine, it was noted that the Commission had considered the
findings of its direct enquiry report along with the views of the CVO and
WP(C) 3968/2012 Page 29 of 32
had advised closure of the said case against the petitioner and four
other officers of the respondent No.2/SPMCIL. In the said OM, the
limited recommendation made by the CVC was that the procedural and
administrative deficiencies noted in the proceedings of the tender, need
to be rectified and the tendering procedure streamlined by the
respondent No.2/SPMCIL.
45. Subsequently, the petitioner had adopted the RTI route to obtain
a copy of the O.M. dated 5.8.2014, issued by the CVC, wherein the
Commission had reiterated the contents of its earlier O.M. dated
7.12.2011, advising closure of the aforesaid complaint and noting inter
alia that there is no ground for seeking ex-post facto approval of the
charge-sheets proposed to be issued in the matter regarding initiation
of departmental proceedings against the petitioner. In other words, the
CVC did not recommend initiation of any departmental action against
the petitioner and resultantly, the vigilance clearance granted to him by
the CVC on 9.1.2012, remains in force.
46. Having unraveled the labyrinthine twists and turn of events that
have taken place in the instant case, right from 30.12.2010, when the
subject post was advertised, till date, it has emerged that the
respondent No.3, who was listed at Sr. No.2 in the panel for
appointment to the subject post and actually selected by virtue of the
WP(C) 3968/2012 Page 30 of 32
appointment letter dated 23.4.2012, has since withdrawn his hat from
the ring and resultantly, the only name in the panel that survives for
consideration is that of the petitioner, whose name was placed at Sr.
No.1. In the meantime, during the pendency of the present
proceedings, the CVC has issued an OM dated 5.8.2014, wherein a
decision has been taken to close the case against the petitioner from
the vigilance angle and the CVC has declined to grant an ex-post facto
approval for initiation of departmental proceedings against him. As a
result, the vigilance clearance granted to the petitioner by the CVC on
9.1.2012, remains quite intact.
47. In the aforesaid facts and circumstances, this Court is of the
opinion that now there is no impediment in placing the name of the
petitioner, which is the only name that survives for consideration in
terms of the panel prepared by the PESB for the subject post, before
the ACC for a fresh consideration for appointment to the post of
Director (Finance) in the respondent No.2/SPMCIL, without insisting on
any further vigilance clearance, but subject to his satisfying any other
requirement as may be considered necessary. Ordered accordingly. As
the subject post has not been filled up through regular appointment for
the past almost four years due to the legal tangle in which the parties
WP(C) 3968/2012 Page 31 of 32
have been embroiled, it is deemed appropriate to direct the respondent
No.1/UOI to act without any further delay and place the matter before
the ACC for a decision within four weeks from today, alongwith a
written request submitted to the Office of the Establishment Officer to
convey the decision taken by the ACC to the concerned Ministry, as per
the procedure prescribed, as expeditiously as is possible.
48. With the aforesaid observations, the present petition is disposed
of, while leaving the parties to bear their own costs.
(HIMA KOHLI)
JUDGE
NOVEMBER 07, 2014
sk/mk/rkb
WP(C) 3968/2012 Page 32 of 32
+ W.P.(C) 3968/2012
Reserved on : 09.09.2014
Pronounced on : 07.11.2014
IN THE MATTER OF :
MADAN MOHAN ..... Petitioner
Through : Mr. Shankar Raju with
Mr. Nilansh Gaur, Advocates
versus
UNION OF INDIA AND ORS. ..... Respondents
Through : Mr. Sanjay Jain, ASG with
Mr. Jasmeet Singh, Ms. Aastha Jain and
Ms. Ruchi Jain, Advocates for UOI.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.
1. The present petition has been filed by the petitioner praying inter
alia for quashing of the order dated 23.4.2012 issued by the
Appointments Committee of the Cabinet (in short ‘the ACC’ ), in
supersession of its earlier order dated 19.3.2012, whereunder he was
appointed as a Director (Finance) in the respondent No.2/Security
Printing Minting Corporation of India Ltd. (SPMCIL) for a period of five
years from the date of his assuming charge of the post or till his
superannuation, and proceeding to approve the appointment of the
respondent No.3 to the very same post.
WP(C) 3968/2012 Page 1 of 32
2. Before dealing with the arguments advanced by the learned
counsels for the parties, it is considered necessary to recapitulate the
relevant facts of the case and some events that have transpired during
the pendency of the present petition. The petitioner herein is an officer
of the Indian Civil Accounts Service Group-„A‟ (1986 Batch). On
23.4.2007, he was appointed for a period of two years, as Director
(Finance) on deputation basis with the respondent No.2/SPMCIL. The
said term was extended by the ACC till 13.10.2011. The post of
Director (Finance) is a Schedule-„A‟ post and the said Officer is a
Member of the Board of Directors. Being the overall in-charge of
finance and accounts functions of the organization, the petitioner was
expected to directly report to the Chairman and Managing Director of
the respondent No.2/SPMCIL. On 30.12.2010, the Public Enterprise
Selection Board (PESB) advertised the post of Director (Finance) in the
respondent No.2/SPMCIL. On 21.2.2011, the petitioner applied for the
aforesaid post through proper channel and was shortlisted by the PESB
for an interview that was held on 18.4.2011. Thereafter, the PESB
prepared a panel for appointment to the subject post, wherein the
petitioner‟s name was placed at serial No.1 and that of the respondent
No.3 was placed at serial No.2. There was no movement between May,
2011 to January, 2012 on account of some delay that took place for
obtaining vigilance clearance in respect of the petitioner from the
WP(C) 3968/2012 Page 2 of 32
Central Vigilance Commission (CVC). Finally, on 9.1.2012, the CVC
advised issuance of vigilance clearance to the petitioner for the post of
Director (Finance) in the respondent No.2/SPMCIL.
3. Vide order dated 19.3.2012, the ACC approved the appointment
of the petitioner as Director (Finance) in the respondent No.2/SPMCIL.
Though, a copy of the aforesaid order was forwarded for information to
different departments, including the PMO, Office of the Home Minister,
Cabinet Secretariat and the PESB, but the same was not communicated
to the petitioner. In a sudden turn of events, the ACC decided to
supersede its order dated 19.3.2012 and passed an order dated
23.4.2012, whereunder respondent No.3 was appointed as Director
(Finance). This was followed by a communication dated 27.4.2012
addressed by the Ministry of Finance to the respondent No.3, conveying
the approval of the ACC for his appointment to the post of Director
(Finance) in the respondent No.2/SPMCIL.
4. The grievance of the petitioner is that once his name was
approved by the ACC for appointment to the post of Director (Finance)
in the respondent No.2/SPMCIL, the respondents No.1 & 2 could not
have issued the impugned order dated 23.4.2012, superseding the
earlier order dated 19.3.2012 and the said action is illegal and a nullity,
more so because before passing the said order, the ACC did not
furnish/mention any reason for superseding its earlier order dated
WP(C) 3968/2012 Page 3 of 32
19.3.2012.
5. When the present writ petition was listed for admission on
9.7.2012, an interim order was passed on the interlocutory application
for stay filed by the petitioner, directing that till the next date of
hearing, the respondents would not allow the respondent No.3 to join, if
he had not already joined. On 5.7.2013, a statement was made on
behalf of the respondent No.1/UOI to the effect that the respondent
No.3, whose name was approved by the ACC for appointment in
preference to the petitioner, had expressed his unwillingness for being
appointed to the subject post. Subsequently, an affidavit dated
21.8.2013 was filed by the respondent No.3 himself stating inter alia
that later on, the ACC had approved his appointment to the post of
Director (Finance) in HUDCO and since he had joined the said post on
30.5.2013, he was no longer interested in the subject post. Though the
respondent No.3 moved out of the picture, the learned ASG appearing
for the respondent No.1/UOI informed the Court that the department
had decided to contest the present petition on merits.
6. On 26.9.2013, taking note of the fact that the order dated
19.3.2012 issued by the ACC appeared to have been circulated to
various departments, directions were issued to the parties to file their
respective affidavits clarifying inter alia as to whether the said decision
had at all been circulated. In compliance of the said order, both the
WP(C) 3968/2012 Page 4 of 32
parties had filed their respective affidavits taking different stands.
Thereafter, pleadings were directed to be completed and the matter was
taken up for final arguments. After conclusion of arguments, the
judgment was reserved on 05.08.2014. However, on 02.09.2014, the
petitioner filed an application seeking permission to file some additional
documents that he had obtained through the RTI route. The said
documents included copies of O.Ms dated 07.12.2011 and 05.08.2014
issued by the CVC and an extract of the relevant notings of the CVC file.
The said application was allowed on 09.09.2014 and the documents in
question were taken on record.
7. The first and foremost ground taken by Mr. Shanker Raju, learned
counsel for the petitioner to assail the impugned order dated 23.4.2012
was that the previous order dated 19.3.2012, appointing the petitioner
to the subject post, was a final order as copies thereof were marked to
different departments, and circulation of the said order had amounted
to publication. Therefore, the order dated 19.03.2012 ought to be
treated as a “communication” to the petitioner, irrespective of the fact
that it was not communicated directly to him. He stated that while
adverse orders need to be communicated as the same is a mandatory
requirement, a positive order, as was passed in the present case, need
not necessarily be communicated in writing to the addressee and
publication thereof would meet the requirements. It was thus urged
WP(C) 3968/2012 Page 5 of 32
that the order dated 19.03.2012 had attained finality and could not be
superseded by the ACC. To buttress the said argument, reference was
made to the decision of the Supreme Court in the case of State of
Punjab vs. Amar Singh Harika, reported as AIR 1966 SC 1313 .
8. Learned counsel contended that in the present case, apart from
the fact that copies of the order dated 19.3.2012 issued by the ACC had
been marked to various departments, “communication” thereof would
include publication in the website of a private portal and looked at in
this background, non-intimation of the said order to the petitioner
looses significance. Reference was made by him to the impugned order
dated 23.4.2012 issued by the ACC to urge that the very fact that the
said order had mentioned that it was being issued in supersession of its
earlier order dated 19.3.2012 appointing the petitioner to the post of
Director (Finance), fortifies his stand that communication of the order
dated 19.3.2012 had already been made to him and had created a
vested right in his favour that could not be disturbed. In support of the
aforesaid submission, learned counsel had cited the decision of the
Supreme Court in the case of Municipal Corporation of Delhi vs. Qimat
Rai Gupta & Ors., reported as (2007) 7 SCC 309 .
9. The second limb of the argument of the counsel for the petitioner
was that the impugned order dated 23.4.2012 issued by the ACC is
liable to be set aside as it was passed without following the due process
WP(C) 3968/2012 Page 6 of 32
and without the participation of all its members, which is a mandatory
requirement. He had quoted Rule 6(6) of the Government of India
(Transaction of Business) Rules, 1961 (in short ‘the Rules’ ) to contend
that the power of review was specifically conferred upon the Cabinet but
no such power was exercised in the present case and therefore an
irregular ACC had cleared the appointment of the respondent No.3 on
23.4.2012, by reversing its earlier recommendation dated 19.3.2012,
which was the only valid order on record.
10. To substantiate his submission that once the ACC passes an
order, the same attains finality and ought to be implemented with
promptitude, learned counsel had referred to an Office Memorandum
dated 10.2.1991 issued by the Department of Personnel and Training
(DOPT), Government of India, which lays down the procedure for
implementation of the decision of the ACC and directs that it should be
ensured that such an order is endorsed to the concerned department
within fifteen days of its receipt. The OM mentions that ordinarily, the
Ministries/departments should avoid sending the proposal for
reconsideration of the decisions of the ACC so that the same can be
implemented immediately on their receipt. It was thus submitted by
the learned counsel for the petitioner that once the ACC had approved
the name of the petitioner for the subject post, a valuable right
enforceable in law had arisen in his favour and the same could not be
WP(C) 3968/2012 Page 7 of 32
defeated by recalling the said order through an irregularly conducted
ACC. To reinforce his arguments, the following citations were referred
to by the learned counsel for the petitioner :
(i) Prem Prakash vs. Union of India & Ors., 1984
(Supp.) 687,
(ii) Asha Kaul (Mrs.) & Another vs. State of Jammu &
Kashmir & Others, (1993) 2 SCC 573 ,
(iii) R.S. Mittal vs. Union of India, 1995 (Suppl.) 2 SCC
230,
(iv) A.P. Aggarwal vs. Govt. of NCT of Delhi & Anr.,
(2000) 1 SCC 600, and
(v) Noida Entrepreneurs Association vs. Noida & Ors.,
(2011) 6 SCC 508 .
11. Per contra, Mr. Sanjay Jain, learned ASG opened his arguments
by explaining the procedure adopted by the Government for notifying
appointments of candidates to Board Level posts in Public Sector
Undertakings (PSUs). He submitted that the ACC comprises of the
Prime Minister, Home Minister and the Minister in-charge of the
concerned Administrative Ministry/department and the proposals of
different Ministries/departments for appointment to Board Level posts in
PSUs under their administrative control are approved by adopting the
process of circulation wherein, the Office of Establishment Officer acts
as the secretariat to the ACC. Once a decision is taken by the ACC, the
same is communicated to the concerned Ministry/department through a
WP(C) 3968/2012 Page 8 of 32
note/communication and based on the said communication, the
concerned Administrative Ministry/department issues an offer of
appointment to the selected candidates and only thereafter is the said
appointment notified.
12. Learned ASG pointed out that in the present case, the decision
taken by the ACC on 19.3.2012, recommending the name of the
petitioner for appointment to the subject post, being confidential in
nature, was only communicated to the Secretary of the Department of
Economic Affairs (DEA) and to those officers who were involved in the
process of appointment of Board Level Executives. However, at no
stage had the said decision been circulated/communicated to the
petitioner. He refuted the argument advanced by the learned counsel
for the petitioner that once copies of the order dated 19.3.2012 were
marked to different departments, including the PMO and the petitioner‟s
appointment had appeared in the news circulated by an online
magazine portal, the same ought to be treated as a “communication” to
the petitioner and was not only sufficient for him to claim a vested right
to the subject post, it also entitled him to raise a grievance with regard
to the violation of the principles of natural justice, on account of non-
grant of an opportunity of hearing to him, before passing a fresh order
on 23.4.2012.
WP(C) 3968/2012 Page 9 of 32
13. Learned ASG argued that even after the recommendation was
made by the ACC in his favour by virtue of its order dated 19.3.2012,
the petitioner could not have claimed that his appointment to the
subject post was finalized for the reason that admittedly, no letter
communicating the offer of appointment was ever issued to him. To
substantiate his argument that when an order of appointment is not
conveyed to a party, he cannot claim that he is entitled to appointment
or raise a plea of infringement of a vested right, reference was made to
the following decisions:
(i) Bachhittar Singh vs. State of Punjab & Anr., AIR
1963 SC 395 and
(ii) Gulabrao Keshavrao Patil & Ors. vs. State of Gujarat &
Ors., (1996) 2 SCC 26 .
14. It was next submitted by the learned ASG that just as the Rules
empower the ACC to make appointments, the said Rules also empower
the ACC to review its own decision and in the present case, the
Administrative Ministry in question was the Ministry of Finance and the
Minister in-charge was the then Finance Minister who was well within his
right to recommend the name of the respondent No.3 to the subject
post on the ground that he was academically and professionally better
qualified.
WP(C) 3968/2012 Page 10 of 32
15. So as to understand how the events had unfolded in the present
case between two crucial dates, i.e., 19.3.2012, the date when the ACC
had initially recommended the petitioner‟s name for appointment to the
subject post and 23.4.2012, the date when the ACC had recommended
the name of the respondent No.3 to the very same post, in
supersession of its earlier decision, the learned ASG was directed to
produce the records and explain the circumstances. On 5.8.2014, the
relevant records were produced by the learned counsel for the
respondent for the perusal of the Court.
16. To explain the background in which the impugned order dated
23.4.2012 was passed by the ACC, learned ASG had submitted that the
then Finance Minister, being the Minister in-charge had approved the
petitioner‟s name for appointment to the subject post. But as per the
prescribed procedure, the said recommendation could have been made
to the ACC only after obtaining the approval of the CVC and at that
point of time, vigilance clearance in respect of the petitioner was not
received for the reason that an inquiry was pending against him with
the CVC.
17. The aforesaid position was also taken note of by the department
on 6.9.2011. Since the department was of the opinion that the post of
Director (Finance) in the respondent No.2/SPMCIL could not be left
WP(C) 3968/2012 Page 11 of 32
unmanned for so long, the ACC was requested to extend the deputation
period of the petitioner for six months w.e.f. 1.7.2011 or till the regular
incumbent would join the post, whichever was earlier. However, the
ACC did not accede to the said proposal and resultantly, the petitioner
was repatriated to his parent cadre w.e.f. 13.10.2011. In the
meantime, having regard to the urgent need to fill up the post of
Director (Finance) in the respondent No.2/SPMCIL on a regular basis,
the Administrative Ministry was of the opinion that it could not wait
indefinitely for vigilance clearance proceedings to conclude in respect of
the petitioner, particularly since the vigilance clearance in respect of
other candidate, i.e., respondent No.3, was already available. As a
result, on 12.9.2011, the Administrative Ministry forwarded a reference
to the DOPT requesting that the ACC‟s approval may be obtained for
appointment of the respondent No.3 to the subject post on a regular
basis. But, vide order dated 19.3.2012, the ACC conveyed its approval
for the appointment of the petitioner as Director (Finance) of the
respondent No.2/SPMCIL.
18. The records reveal that immediately thereafter, vide note dated
2.4.2012, the then Finance Minister wrote to the Prime Minister
requesting him to reconsider the aforesaid decision to appoint the
petitioner to the subject post on the ground that as a Minister in-charge
of the Administrative Ministry, it was respondent No.3 whose name was
WP(C) 3968/2012 Page 12 of 32
recommended by him to the subject post and not that of the petitioner.
The justification offered for recommending the name of respondent
No.3 to the subject post over the petitioner was that he was better
qualified, both academically and professionally and in view of the fact
that the respondent No.2/SPMCIL is a security sensitive organization,
that is engaged in the sovereign function of minting and printing of
coins and currency, respondent No.3 was considered a better choice.
19. Learned ASG pointed out that the very same file containing the
note dated 2.4.2012, addressed by the Ministry of Finance to the then
Prime Minister, also contained a note dated 21.3.2013, prepared by the
Directorate of Currency on the issue of initiation of action against five
senior officers of the respondent No.2/SPMCIL, including the petitioner
herein, for alleged procedural lapses in the procurement procedure
relating to purchase of One Line Printing and Furnishing Plant and
Machinery for the Bank Note Press, Dewas. The said note made a
mention of the fact that the Chief Vigilance Officer of the Department of
Economic Offences had directed that disciplinary action be taken against
five officers, including the petitioner herein, and after considering the
inputs received from the Vigilance Section, it was observed that in view
of certain procedural and administrative lapses in the tendering process
for procurement of the plant and machinery, there was a ground to
initiate action against the officers involved, including the petitioner
WP(C) 3968/2012 Page 13 of 32
herein.
20. As per the learned ASG, with the approval of the then Finance
Minister and the competent authority, a decision was taken to initiate
action against the petitioner for entering into a criminal conspiracy and
causing pecuniary loss to the respondent No.2/SPMCIL and the
Department of Expenditure, who has administrative control over him,
was requested to issue a charge sheet against him.
21. After the judgment was reserved in this case on 5.8.2014, learned
counsel for the petitioner had filed CM No.14699/2014, enclosing
therewith a copy of the OM dated 07.12.2011 issued by the CVC
advising closure of the complaint regarding irregularities in the
procurement of One Line Printing Machine and suggesting rectification
of procedural and administrative deficiencies in the tendering
procedure. A copy of O.M. dated 05.08.2014 issued by the CVC was
also filed by the petitioner. In the said O.M., the CVC expressed a view
that there is no ground for seeking ex-post facto approval of the
charge-sheets and if the department wanted to re-open the case and
charge-sheet the officials, they ought to have sought the advice of the
Commission before doing so. It was submitted by Mr.Shankar Raju,
Advocate that the aforesaid documents were obtained by the petitioner
through the RTI route and the information was furnished by the
Department only after 5.8.2014.
WP(C) 3968/2012 Page 14 of 32
22. Learned counsel for the respondent did not object to the court
taking on record the aforecited documents but stated that the said
documents would not make any material difference as most of them
relate to the period post 23.4.2012, when the impugned order was
issued by the ACC.
23. This Court has heard the arguments advanced by the counsels for
the parties, perused the records produced by the learned counsel for
the respondents and examined the judicial pronouncements relied upon
by both sides.
24. It may be stated at the outset that there is no quarrel with the
submission made by the learned counsel for the petitioner that without
good and valid reason, the Government cannot nullify the exercise
undertaken by the concerned Department that is called upon to prepare
a select list of candidates for appointment to particular posts. Further,
the State actions are required to be non-arbitrary and justified on the
touchstone of Article 14 of the Constitution of India and they must be in
conformity with the same principles that meet the test of reason and
relevance. To put it differently, the action/order of the State/
instrumentality of State would be vitiated if it suffers from the vice of
arbitrariness or if there is a colourabsle exercise of power. Therefore,
the decisions of the Supreme Court cited by the learned counsel for the
WP(C) 3968/2012 Page 15 of 32
petitioner on the aforesaid aspect, including those in the case of Prem
Prakash (supra), Asha Kaul (supra), R.S. Mittal (supra), A.P. Aggarwal
(supra) and Noida Entrepreneurs Association (supra) need not detain
this Court for too long as they enunciate the settled judicial principles of
service jurisprudence that have been consistently followed, on the issue
of testing the State action on the anvil of non-arbitrariness, good faith
and bonafide exercise of power when examining the decisions of the
Government of filling up/declining to fill up the vacancies that may have
arisen in a particular organization/PSU etc. from a select panel. The
only caveat is that mere inclusion in the select list does not confer upon
the candidates included therein, an indefeasible right to appointment.
25. The first question that falls for consideration in the instant case is
whether the order dated 19.3.2012 issued by the ACC recommending
the name of the petitioner for appointment to the post of Director
(Finance) in the respondent No.2/SPMCIL amounted to a
“communication” to the petitioner for vesting a legal right in him. It is
settled law that for an order passed by the State or its functionaries to
be effective, the same must be communicated to the person who would
be affected by that order and until the order is so communicated, it
remains provisional in nature and it would be open to the concerned
authority to reconsider the matter and recall/alter the order. In the
well celebrated decision of a Constitution Bench of the Supreme Court in
WP(C) 3968/2012 Page 16 of 32
the case of Bachhittar Singh (supra), the Supreme Court made the
following observations :-
“9. The question, therefore, is whether he did in
fact make such an order. Merely writing
something on the file does not amount to an
order. Before something amounts to an order of
the State Government, two things are necessary.
The order has to be expressed in the name of
the Governor as required by cl.(1) of Art. 166
and then it has to be communicated. As already
indicated, no formal order modifying the
decision of the Revenue Secretary was ever
made. Until such an order is drawn up, the State
Government cannot in our opinion, be regarded
as bound by what was stated in the file . As long
as the matter rested with him, the Revenue Minister
could well score out his remarks or minutes on the file
and write fresh ones.
10. The business of State is a complicated one and
has necessarily to be conducted through the agency of
a large number of officials and authorities. The
Constitution, therefore, requires and so did the Rules
of Business framed by the Rajpramukh of Pepsu
provide, that the action must be taken by the
authority concerned in the name of the Rajpramukh.
It is not till this formality is observed that the action
can be regarded as that of the State or here, by the
Rajpramukh. We may further observe that,
constitutionally speaking, the Minister is no more than
an advisor and that the head of the State, the
Governor or Rajpramukh, is to act with the aid and
advice of his Council of Ministers. Therefore, until
such advice is accepted by the Governor whatsoever
the Minister or the Council of Ministers may say in
regard to a particular matter does not become the
action of the State until the advice of the Council of
Ministers is accepted or deemed to be accepted by the
Head of the State. Indeed, it is possible that after
expressing one opinion about a particular matter
at a particular stage, a Minister or the Council of
WP(C) 3968/2012 Page 17 of 32
Ministers may express quite a different opinion
one which may be completely opposed to the
earlier opinion. Which of them can be regarded
as the ‘order’ of the State Government?
Therefore, to make the opinion amount to a
decision of the Government, it must be
communicated to the person concerned ………..”
(emphasis added)
26. The aforesaid observations were made after taking into
consideration an earlier decision of the Constitution Bench of the
Supreme Court in the case of State of Punjab vs. Sodhi Sukhdev Singh,
reported as AIR 1961 SCC 493 , relevant extract whereof reads as
under :
“(42). …………..Mr. Gopal Singh attempted to
argue that before the final order was passed, the
Council of Ministers had decided to accept the
respondent‟s representation and to reinstate him, and
that, according to him, the respondent seeks to prove
by calling the two original orders. We are unable to
understand this argument. Even if the Council of
Ministers had provisionally decided to reinstate
the respondent that would not prevent the
Council from reconsidering the matter and
coming to a contrary conclusion later on, until a
final decision is reached by them and is
communicated to the Rajpramukh in the form of
advice and acted upon by him by issuing an
order in that behalf to the respondent. Until the
final order is thus communicated to the
respondent it would be open to the Council to
consider the matter over and over again, and the
fact that they reached provisional conclusions
on two occasions in the past would not alter the
character of the said conclusions . The said
conclusions, provisional in character, are a part of the
WP(C) 3968/2012 Page 18 of 32
proceedings of the Council of Ministers and no
more………….” (emphasis added)
27. In the case of Gulabrao Keshavrao Patil (supra), relied upon by
the respondents, while dealing with the question as to whether it could
be said that the State of Gujarat had taken a decision on the objections
raised by the appellants therein under the Land Acquisition Act, 1894,
the Supreme Court had discussed as to how the Cabinet, known as the
Council of Ministers, is the driving and steering body responsible for the
governance of the country and is, as a whole, collectively responsible
for the advice rendered to the President of India for conduct of business
of each department. In the context of a Council of Ministers with the
Chief Minister at its head to aid and advice the Governor in exercise of
its functions, it was noted that before the action or the decision is
expressed in the name of the Governor as prescribed in the Business
Rules and communicated to the concerned party, by necessary
implication it is open to the Chief Minister to send for the file, examine
it by himself or take a decision, even though the subject was allotted to
a particular Minister for convenient transaction of the business of the
Government, the ultimate object being to secure an impartial, pure and
efficient system of administration.
28. In the aforesaid decision, reference was also made to the decision
of the Constitution Bench in the case of Bachhittar Singh (supra),
WP(C) 3968/2012 Page 19 of 32
wherein it was held that the order must be expressed in the name of
the Governor, as required under Clause (1) of Article 166 of the
Constitution of India and then it has to be communicated, and till the
said order is drawn up in accordance with law, the State Government
cannot be regarded as bound by what it had stated in the file.
Therefore, until the advice is accepted by the Governor, whatever the
Minister or the Council of Ministers may say with regard to adopting a
particular manner, it does not become the action of the State until the
said advice is accepted by the head of the State. Thus, the order
passed by the Chief Minister, even though it is a matter pertaining to
the portfolio of the Revenue Minister, would be deemed to be an order
of the Council of Ministers and its contents would be the Chief Minister‟s
advice to the Governor for which the Council of Ministers would be
collectively responsible. The view taken above was reiterated by the
larger Bench of seven Judges in the case of State of Karnataka vs.
Union of India, reported as (1977) 5 SCC 608 .
29. Similarly, in the case of Kedar Nath Bahl vs. State of Punjab,
reported as (1978) 4 SCC 336 , a three-Judge Bench of the Supreme
Court held that expression of an order in the name of the Governor as
required by Article 166 of the Constitution of India and communication
thereof to the party affected thereby are conditions precedent for the
said order to bind the Government. In the aforesaid case, the order
WP(C) 3968/2012 Page 20 of 32
initially made by the Minister was cancelled by the Chief Minister before
it was communicated, and the said order was upheld to be legal. A
similar view was taken in the case of State of Kerala vs. A.
Lakshmikutty, reported as (1986) 4 SCC 632 .
30. The court may usefully refer to another decision of the Supreme
Court in the case of Tagin Litin vs. State of Arunachal Pradesh & Ors.,
reported as (1996) 5 SCC 83 , where it had the occasion to examine a
case where the Deputy Commissioner, State of Arunachal Pradesh being
the competent authority under Clause 5(1) of the Assam Frontier
(Administration of Justice) Regulation 1945, had approved the
appointment of the petitioner therein as the Head Gaonburah and,
without issuing a formal appointment order, directed the Additional
Deputy Commissioner to inform the petitioner about the said approval.
However, before such an information could be communicated to the
petitioner, with a view to ensure a free and fair selection by considering
a rival claim to that post, the Deputy Commissioner restrained the
communication of the approval to the petitioner and thereafter by
another order, he had appointed the rival claimant as the Gaonburah.
31. In the aforesaid case, the question that arose for consideration by
the Supreme Court was whether by virtue of the order dated 15.2.1994,
the petitioner therein could be treated as having been appointed as the
Head Gaonburah and by passing the subsequent order dated 19.4.1994,
WP(C) 3968/2012 Page 21 of 32
he was removed from the said post. After placing reliance on the
decision of the Constitution Bench in the case of Bachhittar Singh
(supra), the Supreme Court had observed that an appointment to a
post or office postulates three steps: (a) a decision by the competent
authority to appoint a particular person; (b) incorporation of the said
decision in an order of appointment; and (c) communication of the
order of appointment to the person who is being appointed and all the
three requirements must be fulfilled for an appointment to be effective.
32. In the instant case, vide order dated 19.3.2012, the ACC had
recommended the name of the petitioner for being appointed as
Director (Finance) in the respondent No.2/SPMCIL. Subsequently, vide
order dated 23.4.2012, the ACC had superseded its earlier
recommendation dated 19.3.2012 and proceeded to recommend the
name of the respondent No.3 for appointment to the very same post.
This was followed by a communication dated 27.4.2012 addressed by
the Ministry of Finance to the respondent No.3, conveying the ACC‟s
approval to his appointment to the subject post.
33. Given the aforesaid facts, conditions (a) & (b) mentioned in the
case of Tagin Litin(supra), for appointment to a post/office stand
satisfied in the present case. The only question that remains is
whether the litmus test prescribed in condition (c) with regard to
communication of the order to the petitioner, was satisfied before the
WP(C) 3968/2012 Page 22 of 32
order dated 23.4.2012 came to be passed, whereunder respondent No.3
was appointed to the subject post. For coming to any conclusion in
respect of fulfillment of the third condition as stipulated above, it is
necessary to examine the submission made by learned counsel for the
petitioner that irrespective of the fact that the recommendations made
by the ACC, vide order dated 19.3.2012, had not been communicated
directly to the petitioner, the said order had become final on its
circulation to other Ministries and departments and on its
announcement on the website of a private portal, and this should be
deemed to be a communication to him.
34. Going back to the case of Bachhittar Singh (supra), it was
observed therein that until an order is communicated to the person
affected by it, it would be open to the concerned authority to consider
the matter over and over again. Following the said judicial dicta, this
Court is of the opinion that unless and until the recommendations made
by the ACC translate into some concrete action on the part of the
State/authority by issuance of a communication to the person
concerned informing him of his appointment, the said recommendation
cannot be regarded an order of the competent authority, as it still
remains open for consideration and subject to change.
35. In the instant case, before the recommendations made by the
ACC, vide order dated 19.3.2012, were acted upon, the same were
WP(C) 3968/2012 Page 23 of 32
superseded by virtue of the order dated 23.4.2012 that was duly
conveyed to the respondent No.3 in the form of a communication dated
27.4.2012, addressed by the Ministry of Finance. It is apparent from the
facts of the case that prior to issuance of the order dated 23.4.2012,
there was no communication of the order dated 19.3.2012 made to the
petitioner with regard to the recommendation made by the ACC for his
appointment as Director (Finance) in the respondent No.2/SPMCIL.
When the decision dated 19.3.2012 recommending the petitioner‟s
appointment to the subject post, was never communicated to him
directly, it has to be held that it had remained provisional/tentative in
nature and the petitioner cannot argue that an indefeasible right had
accrued in his favour that would entitle him to the appointment.
36. For the aforesaid reason, the contention of the learned counsel for
the petitioner that an adverse order needs to be communicated but a
positive order need not necessarily be communicated in writing to the
addressee, is turned down being devoid of merits. Nor is the Court
persuaded by the stand taken by the petitioner that even in the absence
of non-communication of an order, based on the recommendation made
by the ACC, a vested right had accrued in his favour and the said order
could not be rescinded by the competent authority without affording an
opportunity of hearing to him.
37. The decision in the case of Amar Singh Harika (supra) relied upon
WP(C) 3968/2012 Page 24 of 32
by learned counsel for the petitioner would not be of any assistance as
it does not state that a positive order passed in a case need not
necessarily be communicated in writing to the addressee and
publication thereof would meet the requirement. In the said case, a
copy of the respondent‟s dismissal order was forwarded to six persons
noted thereunder, but a copy of the same was not sent to the
respondent himself. In the said factual matrix, the Supreme Court had
observed that mere passing of an order of dismissal would not be
effective unless and until it is published and communicated to the officer
concerned and that an order of dismissal passed by an appropriate
authority and kept with itself, cannot be said to take effect unless the
officer concerned knows about the said order or it is otherwise
communicated to all parties concerned. The court had pointed out the
perils and pitfalls of passing of an order of dismissal kept by the
appropriate authority in its file, without communicating it to the officer
concerned or otherwise publishing it and observed that it will take effect
from the date when the same was actually written out by the said
authority. The aforecited decision does not deal with the converse
situation where an order recommending appointment was not
communicated to the person concerned.
38. This Court is not persuaded by the arguments advanced by the
counsel for the petitioner that merely because a copy of the order dated
WP(C) 3968/2012 Page 25 of 32
19.3.2012 was forwarded for information to some departments, it would
amount to publication thereof. Copies of the order dated 19.3.2012
issued by the ACC, recommending the petitioner‟s name for
appointment to the subject post were only conveyed within the
departments and the concerned Ministries, but such a communication
can hardly be treated as a “publication”, as sought to be urged by the
petitioner.
39. Similarly, the decision of the Supreme Court in the case of Qimat
Rai Gupta (supra) would also not advance the case of the petitioner as
in the said case, it was observed that communication of an order is a
necessary ingredient for bringing an end result to a status and to
provide an opportunity to a person to take recourse to law if he is
aggrieved thereby, the said order is required to be “communicated”.
40. Coming to the argument of the learned counsel for the petitioner
that an irregular ACC had cleared the name of the respondent No.3 for
appointment to the subject post and the order dated 23.4.2012 was
passed by the ACC without following the due process and without
participation of its members, in the light of the decisions of the
Supreme Court in the cases of Bachhittar Singh (supra), Gulabrao
Keshavrao Patil (supra), Kedar Nath Bahl (supra) and A. Lakshmikutty
(supra), the said submission is found to be fallacious. It may be
emphasized that the business of the State is very intricate and has to
WP(C) 3968/2012 Page 26 of 32
be conducted through the agency of a large number of officials and
authorities. In the case of the ACC, the constituents are the Prime
Minster, Home Minister and the Minster In-charge of the concerned
Administrative Ministry/Department. When it comes to Board level
appointments to posts in PSUs, it is the ACC that finally recommends
the name of the concerned officer for appointment, through the office of
the Establishment Office that acts as a Secretariat to the ACC. Further,
in the matters of appointment to Board level posts, the role of the CVC
is pivotal. The CVC is required to act as a watchdog and ensure that
persons appointed to Board level posts have an unimpeachable
integrity. Thus, clearance by the CVC from the vigilance angle has been
made mandatory and cannot be dispensed with under any
circumstances.
41. In the present case, as noted above, after the subject post was
advertised by the PESB and all the applications scrutinized, a panel for
appointment was prepared where the petitioner‟s name was placed at
Sr. No.1 and that of the respondent No.3 was placed at Sr. No.2.
Between May, 2011 to January, 2012, no progress was made as
vigilance clearance was not received in respect of the petitioner, though
the same was received in respect of the respondent No.3. Due to the
urgency expressed by the Department of Economic Affairs to fill up the
WP(C) 3968/2012 Page 27 of 32
post of Director (Finance) on a regular basis for the efficient functioning
of the respondent No.2/SPMCIL, a proposal was forwarded by it to the
DOPT on 12.9.2011 recommending the name of the respondent No.3 for
appointment to the subject post. In October, 2011, the DOPT
requested the Ministry of Finance for details of the case regarding the
complaint in respect of the petitioner, pending with the CVC and the
CVO of the department and the said information was furnished to the
Ministry on 13.10.2011.
42. After about two months, vide letter dated 6.1.2012, the DOPT
informed the Ministry that the proposal for appointment of the
respondent No.3 to the said post had been submitted to the ACC.
However, the Ministry of Finance reiterated the name of the respondent
No.3 for appointment to the post of Director (Finance) on the ground
that he was academically and professionally better qualified. In the
meantime, vide O.M. dated 19.3.2012, the ACC Secretariat conveyed
the appointment of the petitioner to the subject post.
43. Immediately thereupon, the then Finance Minister had prepared a
disagreement note dated 2.4.2012 stating inter alia that the name of
the respondent No.3 had been recommended to the subject post and
not that of the petitioner. The said note was placed before the Prime
Minster and the order dated 19.3.2012 was superseded by the order
WP(C) 3968/2012 Page 28 of 32
dated 23.4.2012, wherein the ACC recommended the name of the
respondent No.3 to the subject post. Apart from explaining the
circumstances in which the order dated 19.3.2012 was
recalled/superseded and the order dated 23.4.2012 came to be passed,
much emphasis was laid by learned ASG on the fact that departmental
proceedings were contemplated against the petitioner and vide note
dated 21.3.2013, the Directorate of Currency had mentioned the fact
that the Chief Vigilance Officer of the Department of Economic Offences
had directed that disciplinary action be initiated against five officers,
including the petitioner herein, for alleged procedural lapses in the
procurement procedure relating to purchase of One Line Printing and
Furnishing Plant and Machinery for the Bank Note Press, Dewas.
44. The Court was informed that with the approval of the then
Finance Minister and the competent authority, a decision had been
taken to initiate departmental action against the petitioner for causing
pecuniary loss to the respondent No.2/SPMCIL and the Department of
Expenditure. At that stage, learned counsel for the petitioner had
referred to an O.M. dated 7.12.2011 issued by the CVC, wherein on the
complaint regarding irregularities in the procurement of One Line
Printing Machine, it was noted that the Commission had considered the
findings of its direct enquiry report along with the views of the CVO and
WP(C) 3968/2012 Page 29 of 32
had advised closure of the said case against the petitioner and four
other officers of the respondent No.2/SPMCIL. In the said OM, the
limited recommendation made by the CVC was that the procedural and
administrative deficiencies noted in the proceedings of the tender, need
to be rectified and the tendering procedure streamlined by the
respondent No.2/SPMCIL.
45. Subsequently, the petitioner had adopted the RTI route to obtain
a copy of the O.M. dated 5.8.2014, issued by the CVC, wherein the
Commission had reiterated the contents of its earlier O.M. dated
7.12.2011, advising closure of the aforesaid complaint and noting inter
alia that there is no ground for seeking ex-post facto approval of the
charge-sheets proposed to be issued in the matter regarding initiation
of departmental proceedings against the petitioner. In other words, the
CVC did not recommend initiation of any departmental action against
the petitioner and resultantly, the vigilance clearance granted to him by
the CVC on 9.1.2012, remains in force.
46. Having unraveled the labyrinthine twists and turn of events that
have taken place in the instant case, right from 30.12.2010, when the
subject post was advertised, till date, it has emerged that the
respondent No.3, who was listed at Sr. No.2 in the panel for
appointment to the subject post and actually selected by virtue of the
WP(C) 3968/2012 Page 30 of 32
appointment letter dated 23.4.2012, has since withdrawn his hat from
the ring and resultantly, the only name in the panel that survives for
consideration is that of the petitioner, whose name was placed at Sr.
No.1. In the meantime, during the pendency of the present
proceedings, the CVC has issued an OM dated 5.8.2014, wherein a
decision has been taken to close the case against the petitioner from
the vigilance angle and the CVC has declined to grant an ex-post facto
approval for initiation of departmental proceedings against him. As a
result, the vigilance clearance granted to the petitioner by the CVC on
9.1.2012, remains quite intact.
47. In the aforesaid facts and circumstances, this Court is of the
opinion that now there is no impediment in placing the name of the
petitioner, which is the only name that survives for consideration in
terms of the panel prepared by the PESB for the subject post, before
the ACC for a fresh consideration for appointment to the post of
Director (Finance) in the respondent No.2/SPMCIL, without insisting on
any further vigilance clearance, but subject to his satisfying any other
requirement as may be considered necessary. Ordered accordingly. As
the subject post has not been filled up through regular appointment for
the past almost four years due to the legal tangle in which the parties
WP(C) 3968/2012 Page 31 of 32
have been embroiled, it is deemed appropriate to direct the respondent
No.1/UOI to act without any further delay and place the matter before
the ACC for a decision within four weeks from today, alongwith a
written request submitted to the Office of the Establishment Officer to
convey the decision taken by the ACC to the concerned Ministry, as per
the procedure prescribed, as expeditiously as is possible.
48. With the aforesaid observations, the present petition is disposed
of, while leaving the parties to bear their own costs.
(HIMA KOHLI)
JUDGE
NOVEMBER 07, 2014
sk/mk/rkb
WP(C) 3968/2012 Page 32 of 32