Union of India vs Dr. Sivasubramaniam Nambi Naidu
- Court
- High Court for the State of Telangana
IN THE HIGH COURT FOR THE STATE OF TELANGANA ::
HYDERABAD
*
WRIT PETITION Nos.126 and 127 of 2026
WRIT PETITION No.126 of 2026
Between:
Union of India, Represented by Secretary,
Ministry of Defence, New Delhi and 3 others.
…Petitioners
AND
Dr. Sivasubramaniam Nambi Naidu and Another.
…Respondents
COMMON ORDER PRONOUNCED ON: 22.09.2026
THE HON’BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
________________
P.SAM KOSHY, J
Page 2 of 49
* THE HON’BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA
+ WRIT PETITION Nos.126 and 127 of 2026
% 22.09.2026
WRIT PETITION No.126 of 2026
# Between:
Union of India, Represented by Secretary,
Ministry of Defence, New Delhi and 3 others.
…Petitioners
AND
Dr. Sivasubramaniam Nambi Naidu and Another.
…Respondents
! Counsel for appellants : Mr. B. Narsimha Sarma, learned
Additional Solicitor General of India representing Mr. N. Bhujanga
Rao, learned Deputy Solicitor General of India for the petitioner in
Writ Petition No.126 of 2026.
^Counsel for respondents : Mr. S. Niranjan Reddy,
learned Senior Counsel representing Mr. S. Sahil Reddy, learned
counsel for the petitioner in Writ Petition No.127 of 2026, and
Mr. Srinivas Chamarthy, learned counsel of the respondent No.1 in
both the Writ Petitions
<GIST:
> HEAD NOTE:
Page 3 of 49
? Cases referred
1) (1990) 1 SCC 305
2) (1996) 10 SCC 555
3) (2008) 2 SCC 119
4) (1992) 2 SCC 481
5) (2023) 17 SCC 147
6) (2025) 7 SCC 705
7) (2015) 11 SCC 493
8) (1973) 2 SCC 836
9) (1974) 4 SCC 3
10) (1979) 3 SCC 489
11) (2008) 3 SCC 512
12) (2011) 12 SCC 85
13) (1991) 1 SCC 505
14) (1980) 3 SCC 97
15) (2018) 15 SCC 796
Page 4 of 49
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
THE HON’BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA
WRIT PETITION Nos.126 & 127 of 2026
(CNR Nos.HBHC010001662026 & HBHC010001792026)
DATE: 22.09.2026
Reserved on : 09.07.2026 Pronounced on : 22.09.2026
Uploaded on : 22 .09.2026
W.P.No.126 of 2026
Between:
Union of India, Represented by Secretary,
Ministry of Defence, New Delhi and 3 others.
…Petitioners
AND
Dr. Sivasubramaniam Nambi Naidu and Another.
…Respondents
(per the Hon’ble Sri Justice P.Sam Koshy)
COMMON ORDER:
Heard Mr. B. Narsimha Sarma, learned Additional Solicitor
General of India representing Mr. N. Bhujanga Rao, learned Deputy
Solicitor General of India for the petitioner in Writ Petition No.126 of
2026; Mr. S. Niranjan Reddy, learned Senior Counsel representing
Page 5 of 49
Mr. S. Sahil Reddy, learned counsel for the petitioner in Writ Petition
No.127 of 2026, and Mr. Srinivas Chamarthy, learned counsel of the
respondent No.1 in both the Writ Petitions.
2. Since the instant Writ Petitions are filed challenging the same
order passed by the Central Administrative Tribunal, Hyderabad
Bench, Hyderabad (for short the ‘Tribunal’) and the question of law
involved therefore being the same, we proceed to decide them by this
Common Order.
3. For convenience, the facts in Writ Petition No.126 of 2026 are
discussed hereunder.
4. Writ Petition No.126 of 2026 has been filed by the petitioner
challenging the impugned order by the Tribunal, in OA No.021/02253
of 2024, decided on 29.12.2025, and to quash and set aside the same
as it is contrary to law and perverse.
5. The Defence Research and Development Organisation (for
short ‘DRDO’), a premier agency functioning under the Department
of Defence Research and Development, Ministry of Defence (for
short ‘DDR&D’) was headed by the Secretary, DDR&D and
Page 6 of 49
Chairman, DRDO, and assisted by Director Generals heading seven
technology clusters located across the country and five corporate
clusters at its headquarters each formulating policy in its respective
domain. Among the corporate clusters, the Director General
(BrahMos) stationed at DRDO Headquarters, headed BrahMos
Aerospace, a joint venture between DRDO, India and a Joint Stock
Company of Russia, responsible for the designing, developing,
producing and marketing of the BrahMos supersonic cruise missile
undertaken with the active participation of a consortium of Indian and
Russian industries. The scientist appointed as Director General
(BrahMos) from DRDO, Ministry of Defence, correspondingly
functioned as the Chief Executive Officer and Managing Director of
BrahMos Aerospace Pvt. Ltd.
6. The post of Director General (BrahMos) fell vacant w.e.f.
01.12.2024 upon superannuation of the incumbent then holding the
post, pursuant to which the selection process for the said post was
initiated by issuance of in-house Advertisement No.03/2024(1)
inviting applications from desirous candidates for the post of Director
General (BrahMos) / Corporate Cluster. The essential qualifications
as per the said notification are:
Page 7 of 49
(a) A Scientist in the Grade of “Scientist H” or above.
(b) A Scientist who has served tenure as Director of a
Laboratory/Programme Director/Corporate Director.
(c) Should have at least 12 months of residual service;
and the desirable qualification is M. Tech/Ph. D in the relevant field.
7. The notification further stipulated a two-tier selection
mechanism: a two-member Screening Committee comprising the
Director of Personnel (DoP), and the Staff Officer to Director General
(HR) who was to scrutinise all applications received and exclude
those not meeting the prescribed eligibility criteria, following which
the list of eligible candidates was to be forwarded to a Selection
Committee and the Selection Committee, in turn, was empowered to
hold interaction meetings with the eligible candidates before
finalising a panel of a maximum of three recommended candidates to
be placed before the Secretary, DDR&D and Chairman, DRDO, for
the final decision.
8. Rule 10 of the Defence Research and Development Service
Rules, 2023 (SRO No.72 dated 25.05.2023) framed under the proviso
to Article 309 of the Constitution of India, designated the
Chairperson, DRDO, as the Head of the Service, vesting in him the
responsibility for deployment of officers of the service to the best
Page 8 of 49
advantage of the Organisation and the Government, including
deployment of senior Scientists in their present grade as Director
General or Director or any such designated position within the
Organisation so as to meet its functional requirements. Rule 10 of the
Defence Research and Development Service Rules, 2023 reads as
under:
“ 10. Head of Service
The Chairperson, Defence Research and Development Organisation
shall be the Head of the Service and shall be responsible for
deployment of officers of the service to the best advantage of the
Organisation and the Government, including deployment of senior
Scientist in his present grade as Director General, or Director, or any
such designated position in the Organisation to meet its functional
requirements.”
9. In terms of the said Rule, read with the in-house advertisement,
the Secretary, DDR&D and Chairman, DRDO, were the competent
authority empowered to take the final decision as to the suitable
candidate best serving the functional requirements of the post of
Director General. Given that the post of Director General (BrahMos)
was highly sensitive, strategic in nature, and techno-managerial, the
entire selection process was maintained in strict confidentiality and
the scientist finally selected by the competent authority was to be
Page 9 of 49
appointed to the post of Director General (BrahMos) by transfer from
his existing laboratory to the Office of Director General (BrahMos),
New Delhi.
10. The closing date for the said in-house advertisement was
12.09.2024. Upon scrutiny of the applications received, the screening
committee excluded those not meeting the advertised eligibility
criteria and forwarded the list of eligible candidates including
respondent Nos.1 and 2 to the selection committee. The selection
committee interviewed the screened-in candidates, including
respondent Nos.1 and 2 on 22.10.2024, and after conducting a
discreet review of the profiles of each eligible candidate and
interacting with them, the selection committee recommended a panel
of three candidates including respondent Nos.1 and 2 in alphabetical
order to the Secretary, DDR&D and Chairman, DRDO, who was the
competent authority for making the final appointment.
11. The Secretary, DDR&D and Chairman, DRDO, upon due
consideration of the three scientists recommended in the panel
forwarded by the selection committee, selected respondent No.2 as
the most suitable scientist for the post and passed orders accordingly
Page 10 of 49
to that effect on 22.11.2024 for appointment of respondent No.2 as
Director General (BrahMos), New Delhi, on transfer from DRDL,
Hyderabad. Office order dated 25.11.2024 was accordingly issued
transferring respondent No.2 from DRDL, Hyderabad to the Office of
Director General (BrahMos), New Delhi in public interest.
12. A Scientist of the grade “Scientist H” or above, upon
appointment as Director General (BrahMos) continued to draw pay
and allowances corresponding to the post held by him as Scientist H
or above in terms of the DRDS Rules. The said selection and
appointment was effected purely by way of transfer of the scientist
concerned from his laboratory, upon due selection, to the post of DG
(BrahMos) at Headquarters, without any change in emoluments or
other financial implications and without constituting an upgradation
or promotion, the exercise being, in substance, a selection made to
meet the functional requirement of the post. Respondent No.2 was
accordingly relieved from DRDL, Hyderabad, and assumed charge as
Director General (BrahMos) in terms of the office order dated
25.11.2024.
Page 11 of 49
13. Respondent No.1, being one of the eligible candidates under
the said in-house advertisement, filed O.A. No.021/02253 of 2024
before the Tribunal assailing the appointment order dated 25.11.2024
in favour of respondent No.2 principally on the ground that he being a
Distinguished Scientist (Level 16) and senior to respondent No.2 who
held the grade of Outstanding Scientist (Level 15) was entitled to be
appointed as Director General (BrahMos) in preference to respondent
No.2, and accordingly sought setting aside of the said appointment
order together with a consequential direction to appoint him to the
post.
14. The petitioners herein, being respondents before the Tribunal in
the said O.A., filed a detailed reply statement as well as an additional
reply statement contending that although Rule 10 of the DRDS Rules,
2023 empowered the Chairman, DRDO as head of the service to
deploy any senior scientist as Director General (BrahMos) to meet the
functional requirement, a due selection process had, in fact, been
followed by issuance of the in-house advertisement so as to select the
eligible, willing, and most suitable senior scientist for the post. It was
pointed out that the selection committee headed by the Chairman,
Recruitment and Assessment Centre and comprising as its other
Page 12 of 49
members the Director, Indian Institute of Management (IIM),
Visakhapatnam, the Vice Chancellor, Defence Institute of Advanced
Technology (DIAT), and the Director General (Human Resources),
DRDO Headquarters, had undertaken thorough scrutiny of the
profiles of each candidate as reflected in their biodata and other
relevant factors before recommending a panel of three candidates in
alphabetical order to the competent authority, who, upon thorough
consideration of the material on record selected respondent No.2 as
the most suitable scientist for the post, having regard, in particular, to
his experience in handling joint venture projects with foreign
countries — a consideration directly relevant to the functional
requirement of Director General (BrahMos) which entailed active
participation in a consortium of Indian and Russian industries for the
BrahMos supersonic cruise missile programme.
15. It was accordingly contended that the entire selection process
from the stage of issuance of the in-house advertisement till the
appointment of respondent No.2 was strictly in conformity with the
terms of the advertisement and the rules in force, legal, valid, and
undertaken by the competent authority. Respondent No.1 filed a
rejoinder before the Tribunal, the authorities thereafter again filed an
Page 13 of 49
additional reply, and respondent No.2 was arrayed as respondent No.5
before the Tribunal, filed his own pleadings.
16. During the course of hearing before the Tribunal, orders were
passed on 23.06.2025 directing production of the records pertaining to
the selection and appointment of respondent No.2 herein, together
with the minutes of the selection process, which record was duly
submitted for the Tribunal’s perusal. Further, in compliance with the
Tribunal’s directions, the record relating to the promotion of
respondent No.1 herein from Outstanding Scientist to Distinguished
scientist was also placed before it. At the stage of submission of the
said records, it was reiterated that the selection in question, made
pursuant to the in-house advertisement did not constitute a promotion,
but was, rather a selection of the most suitable senior scientist for
appointment by way of transfer from the laboratory to the post of
Director General (BrahMos), a post of a strategic and high-profile
nature requiring suitability and qualification in business management,
specialised experience in manufacturing, and desirable experience in
foreign collaboration, among other relevant factors such as experience
and national role in the concerned field, and that the competent
authority upon due consideration of the entire file, had selected and
Page 14 of 49
appointed respondent No.2 as the most suitable senior scientist,
having regard to his experience in handling joint venture projects with
foreign countries.
17. The Tribunal, without due appreciation of the material on
record and pleadings, and upon what was contended to be an
erroneous consideration thereof, allowed the O.A. vide the impugned
order dated 29.12.2025, thereby setting aside the appointment of
respondent No.2 herein as Director General (BrahMos) under office
letter dated 25.11.2024 and directed the authority concerned to
reconsider the case of the respondent No.1 herein for appointment as
Director General (BrahMos) within a stipulated time, and further
directed that no in-charge arrangement be made by respondent No.2
in the interregnum.
18. It was contended that the said order of the Tribunal was illegal,
suffered from material irregularity in the exercise of jurisdiction, was
vitiated by having exceeded the permissible limits of judicial review
and was contrary to the material on record as well as the law and on
these grounds was liable to be set aside.
Page 15 of 49
19. Learned Additional Solicitor General of India firstly argued
that the Tribunal failed to note that as per the advertisement, the
Scientists “H” or above, who were serving as Project Director /
Director of Lab / Programme Director were eligible and that there was
no provision of any additional weightage either to the seniority or the
higher level holding in the subject selection and hence, its
observations against the said selection either on the ground of
seniority of the applicant in O.A. or the fact of getting promotion
subsequent to the closing date of the notification as a Distinguished
Scientist, are totally erroneous, perverse and liable to be set aside.
20. Learned Additional Solicitor General of India then argued that
the Tribunal exceeded its scope of judicial review by holding that
higher qualification, higher experience, awards, etc. must be the
criteria for selection, which is totally contrary to the rule position
relied upon as well as the terms and conditions of the in-house
advertisement and hence such findings are again perverse and bad in
law.
21. Learned Additional Solicitor General of India contended that
the observation of the Tribunal in paragraph No.19 of impugned order
Page 16 of 49
are contrary to the records produced before it by respondent No.1
herein, as much as all the three shortlisted scientists were awarded
equal marks by selection committee. Therefore, there was no wrong
in recommending names of three shortlisted scientists in alphabetical
order and that the Tribunal ignored the submission of the Union of
India of their written submissions that respondent No.1 herein had
tried to mislead the Tribunal by alleging in O.A. that he was top most
among shortlisted candidates, however, such allegation was refuted
by the Union of India by proving that in fact selection committee
recommended the names of shortlisted candidates in alphabetical
order without indicating any merit or seniority. The respondent No.1
further tried to mislead Tribunal by alleging in his rejoinder that there
is no provision to appoint any scientist as Director General (BrahMos)
under the pleasure of Chairman, DRDO whereas Rule 10 of the
DRDS Rules, 2023 specifically empowers the Chairman, DRDO in
this regard. Learned Additional Solicitor General of India further
contended that the Tribunal erred in ‘reassessing the comparative
merits of candidates’ and virtually substituted its own opinion, which
is in contravention of statutory rules, SOP and in house
advertisement’s criteria for selection which vitiates entire findings.
Page 17 of 49
22. Learned Additional Solicitor General of India relied upon
various judgments and submitted that the Tribunal erred in setting
aside the appointment of the respondent No.2 as Director General
(BrahMos) vide office order dated 25.11.2024 after due selection
process, recommendations of the selection committee and final
appointment by the competent authority, which is beyond the scope of
judicial review as held in catena of decisions of the Hon’ble Supreme
Court listed below.
i. Dalpat Abasaheb Solunke and others vs. Dr. B.S. Mahajan
1
and others
2
ii. Union of India vs. Samar Singh and others
iii. M.V. Thimmaiah and others vs. Union Public Service
3
Commission and others
iv. National Institute of Mental Health and Neuro Sciences Vs.
4
Dr. K. Kalyana Raman
v. Tajvir Singh Sodhi and others vs. State of Jammu &
5
Kashmir and others
1
(1990) 1 SCC 305
2
(1996) 10 SCC 555
3
(2008) 2 SCC 119
4
(1992) 2 SCC 481
5
(2023) 17 SCC 147
Page 18 of 49
23. Learned Senior Counsel appearing for the petitioner in Writ
Petition No.127 of 2026 contended that the Tribunal or Court cannot
be replaced as an appellate authority in such sensitive matters where
otherwise interference can only be made if there is proven mala fide
or gross arbitrariness.
24. He further relied on the decision of the Hon’ble Supreme
6
Court in the case of State of Assam vs. Arabinda Rabha wherein it
was held that where a selection process is challenged by an
unsuccessful candidate merely on the grounds of the absence of
recruitment rules or upon nebulous or un-particularised allegations of
bias, favouritism or nepotism, a Court ought not to interfere in the
absence of factors vitiating the process.
25. He further relied upon the decision of the Hon’ble Supreme
Court in the case of Pradeep Kumar Rai vs. Dinesh Kumar
7
Pandey wherein it was held that where a candidate who had
participated in a selection process without demur cannot, upon being
declared unsuccessful, turn around and challenge the very process in
which he freely participated.
6
(2025) 7 SCC 705
7
(2015) 11 SCC 493
Page 19 of 49
26. Lastly, it was submitted that the BrahMos Aerospace is a
strategic Indo-Russian Joint Venture of national importance. The
selection committee and the appointing authority having duly
considered the petitioner’s experience and qualifications in handling
international joint venture projects as a decisive factor for the post of
Director General (BrahMos) and selected the petitioner on
independent and substantial merit. Therefore, there was no scope of
interference left for the Tribunal to set aside the appointment of
Dr. Jaiteerth Joshi and direct the selection committee to reconsider
Dr. Sivasubramaniam Nambi Naidu for the position of Director
General (BrahMos).
27. On the contrary, learned counsel for respondent No.1 argued
that the Union of India failed to justify the selection of respondent
No.2 as the most suitable scientist for the post of Director General
(BrahMos) even after perusing the SOPs and the confidential report
provided to the Tribunal and that admittedly the selection committee
without merit gradation sent the final list in an ‘alphabetical order’ to
the Chairman, DRDO clearly reflecting the manifest arbitrariness and
lack of application of mind in the selection process.
Page 20 of 49
28. Learned counsel for the respondent No.1 further argued that the
Tribunal was justified in the judicial interference due to manifest
arbitrariness and that it did not step into the shoes of the selection
process, but analysed the manifest arbitrariness in selection of the
Director General (BrahMos) by discussing the gaps in the selection
process and the same cannot be termed as ‘stepping into the shoes of
selection committee’.
29. Learned counsel for the respondent No.1 submitted that the
Tribunal was right in appointing respondent No.1 as the Director
General (BrahMos) and relied upon the below listed judgments to
buttress his arguments.
8
i. Union of India vs. Mohan Lal Capoor
9
ii. E.P. Royappa vs. State of T.N.
iii. Ramana Dayaram Shetty vs. International Airport
10
Authority of India
11
iv. K. Manjusree vs. State of A.P.
12
v. Bedanga Talukdar vs. Saifudaullah Khan
8
(1973) 2 SCC 836
9
(1974) 4 SCC 3
10
(1979) 3 SCC 489
11
(2008) 3 SCC 512
12
(2011) 12 SCC 85
Page 21 of 49
30. Having heard the contentions put forth on either side and on
perusal of records, the question of law which falls for our
consideration is “whether the Tribunal, in setting aside the
appointment of respondent No.2 as Director General (BrahMos) and
directing reconsideration of respondent No.1’s candidature, exceeded
the permissible limits of judicial review by re-appreciating the
comparative merit, seniority, and grade of the candidates
recommended by a duly constituted selection committee in a selection
process concerning a highly sensitive, strategic, and technical post of
national importance, where the advertisement and the governing
Rules prescribed no criterion of seniority or higher grade as a
determinative or weighted factor, and where the exercise of discretion
by the competent authority was not shown to be vitiated by mala
fides , illegality, or a patent violation of the prescribed procedure?”
31. At the outset it is necessary to remind ourselves of the nature
and gravity of the subject matter before us. The post of Director
General (BrahMos) is not an ordinary administrative or managerial
post; it is the apex position overseeing the BrahMos supersonic cruise
missile programme, which is a strategic asset of the Indian State,
developed and produced through a sensitive joint venture between the
Page 22 of 49
DRDO and a Russian counterpart, involving matters of national
security, defence preparedness, and international collaboration of the
highest sensitivity. The very confidentiality maintained around the
selection process as borne out by the record is itself a reflection of the
strategic character of the post. It is in this context, a context far
removed from the ordinary run of service disputes that the scope and
limits of judicial (and Tribunal) review of the selection in question
must be examined.
32. We may usefully recall at this stage the law laid down by the
Hon’ble Supreme Court in the case of Union of India vs. S.L.
13
Dutta , wherein in the context of a policy concerning promotional
avenues in a technical and specialised branch of the Armed Forces, it
was held as follows:
“ 18. It was next submitted by learned counsel that no minutes of
what transpired at the meeting of the Air Marshals which approved
the change of policy, were produced before the court and hence,
the court was not in a position to decide whether the change of
policy was justified. He contended that it was significant that one
Air Marshal from the Navigation Branch had opposed the change
in the policy. It was also pointed out by him that, at one stage, the
Government of India was not willing to adopt the change of policy
but had changed its mind later on and the reasons for this change
13
(1991) 1 SCC 505
Page 23 of 49
were not on record. It was submitted by him that these
circumstances showed that the change of policy was arbitrary. It
was urged by him that the impugned judgment of the High Court
was correct, as it was based on these considerations. He, however,
made it clear that he was not pressing any allegation of mala fide
which might be contained in the petition. In our opinion, the High
Court was in error in making the impugned order. As has been laid
down more than once by this Court, the court should rarely
interfere where the question of validity of a particular policy is in
question and all the more so where considerable material in the
fixing of policy are of a highly technical or scientific nature. A
consideration of a policy followed in the Indian Air Force
regarding the promotional chances of officers in the Navigation
Stream of the Flying Branch in the Air Force qua the other
branches would necessarily involve scrutiny of the desirability of
such a change which would require considerable knowledge of
modern aircraft, scientific and technical equipment available in
such aircraft to guide in navigating the same, tactics to be
followed by the Indian Air Force and so on. These are matters
regarding which judges and the lawyers of courts can hardly be
expected to have much knowledge by reasons of their training
and experience. In the present case there is no question of
arbitrary departure from the policy duly adopted because before
the decision not to promote respondent 1 was taken, the policy had
already been changed. The question is, therefore, whether this
change can be said to be arbitrary or mala fide. As we have
already pointed out, we are not in a position to hold that this
change of policy was not warranted by the circumstances
prevailing. As the matter was considered at some length by as
many as 12 Air Marshals and the Chief of Air Staff of Indian Air
Force, it is not possible to say that the question of change of policy
Page 24 of 49
was not duly considered. Mere non-availability of the minutes
setting out the discussion, is of no relevance. In fact, it would
perhaps be detrimental to the interest of the country if these
matters were not kept confidential. We cannot assume that what
was discussed at this meeting was not relevant to the decision
regarding the change of policy. It may be that at one time the
Ministry of Defence was not agreeable to accept the proposal for
this change of policy but on further consideration accepted it.
However, this could well show that before accepting the change of
policy the Ministry of Defence and the experts attached to it gave
full consideration to the requirements of the change. We cannot on
the basis of this circumstance alone hold that the change of policy
was arbitrary.”
The ratio of the above pronouncement applies to the present
case with singular force. The selection to the post of Director General
(BrahMos), a post requiring, as the record itself discloses, business
management acumen, specialised manufacturing experience, and
experience in handling foreign collaborations in a highly technical
missile programme is quintessentially a matter requiring specialised,
technical, and strategic judgment of precisely the kind that Courts and
Tribunals by reason of their training and experience, are ill-equipped
to second-guess. The assessment of which among several qualified
scientists possesses the requisite blend of technical depth, managerial
capability and experience of foreign collaboration to head so sensitive
Page 25 of 49
a programme is a matter falling squarely within the domain of the
selection committee constituted of the Chairman, Recruitment and
Assessment Centre, the Director of the Indian Institute of
Management, Visakhapatnam, the Vice Chancellor of the Defence
Institute of Advanced Technology, and the Director General (Human
Resources), DRDO and thereafter of the competent authority, namely
the Secretary, DDR&D and Chairman, DRDO, who bears
constitutional and statutory responsibility for deployment of the
scientific personnel to the best advantage of the Organisation and the
Nation under Rule 10 of the DRDS Rules, 2023. For a Tribunal,
however well-intentioned, to substitute its own assessment of relative
technical and managerial suitability for that of such a committee and
such an authority is precisely the kind of judicial overreach that S.L.
Dutta (supra) counsels against.
33. Equally apposite is the law laid down by the Hon’ble Supreme
Court in the case of the case of T.N. Education Deptt. Ministerial &
14
General Subordinate Services Assn. vs. State of T.N. wherein it
was held as follows:
14
(1980) 3 SCC 97
Page 26 of 49
“7. In Service Jurisprudence integration is a complicated
administrative problem where, in doing broad justice to many,
some bruise to a few cannot be ruled out. Some play in the joints,
even some wobbling, must be left to government without fussy
forensic monitoring, since the administration has been entrusted by
the Constitution to the executive, not to the court. All life, including
administrative life, involves experiment, trial and error, but within
the leading strings of fundamental rights, and, absent
unconstitutional “excesses”, judicial correction is not right. Under
Article 32, this Court is the constitutional sentinel, not the national
ombudsman. We need an ombudsman but the court cannot make-
do.”
15
34. In the case of UPSC vs. M. Sathiya Priya it was held that it
is not open for the Tribunal or the Court to sit in appeal over the
assessment for the post of Director General (BrahMos) and that
interference is only warranted wherein it was shown that the process
was vitiated by mala fides or arbitrariness. The relevant paragraphs
of the said judgment are reproduced hereunder:
“ 17. The Selection Committee consists of experts in the field. It is
presided over by the Chairman or a Member of UPSC and is duly
represented by the officers of the Central Government and the
State Government who have expertise in the matter. In our
considered opinion, when a High-Level Committee or an expert
body has considered the merit of each of the candidates, assessed
the grading and considered their cases for promotion, it is not
open to CAT and the High Court to sit over the assessment made
15
(2018) 15 SCC 796
Page 27 of 49
by the Selection Committee as an appellate authority. The
question as to how the categories are assessed in light of the
relevant records and as to what norms apply in making the
assessment, is exclusively to be determined by the Selection
Committee. Since the jurisdiction to make selection as per law is
vested in the Selection Committee and as the Selection Committee
members have got expertise in the matter, it is not open for the
courts generally to interfere in such matters except in cases where
the process of assessment is vitiated either on the ground of bias,
mala fides or arbitrariness. It is not the function of the court to
hear the matters before it treating them as appeals over the
decisions of the Selection Committee and to scrutinise the relative
merit of the candidates. The question as to whether a candidate is
fit for a particular post or not has to be decided by the duly
constituted expert body i.e. the Selection Committee. The courts
have very limited scope of judicial review in such matters.
18. We are conscious of the fact that the expert body's opinion
may not deserve acceptance in all circumstances and hence it
may not be proper to say that the expert body's opinion is not
subject to judicial review in all circumstances. In our
constitutional scheme, the decision of the Selection
Committee/Board of Appointment cannot be said to be final and
absolute. Any other view will have a very dangerous consequence
and one must remind oneself of the famous words of Lord Acton
“Power tends to corrupt, and absolute power corrupts
absolutely”. The aforementioned principle has to be kept in mind
while deciding such cases. However, in the matter on hand, it is
abundantly clear from the affidavit filed by UPSC that the
Selection Committee which is nothing but an expert body had
carefully examined and scrutinised the experience, Annual
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Confidential Reports and other relevant factors which were
required to be considered before selecting the eligible candidates
for IPS. The Selection Committee had in fact scrutinised the
merits and demerits of each candidate taking into consideration
the various factors as required, and its recommendations were
sent to UPSC. It is the settled legal position that the courts have
to show deference and consideration to the recommendations of
an Expert Committee consisting of members with expertise in the
field, if malice or arbitrariness in the Committee's decision is not
forthcoming. The doctrine of fairness, evolved in administrative
law, was not supposed to convert tribunals and courts into
appellate authorities over the decision of experts. The
constraints—self-imposed, undoubtedly—of writ jurisdiction still
remain. Ignoring them would lead to confusion and uncertainty.
The jurisdiction may become rudderless.
20. This Court has repeatedly observed and concluded that the
recommendations of the Selection Committee cannot be
challenged except on the ground of mala fides or serious violation
of the statutory rules. The courts cannot sit as an appellate
authority or an umpire to examine the recommendations of the
Selection Committee like a court of appeal. This discretion has
been given to the Selection Committee only, and the courts rarely
sit as a court of appeal to examine the selection of a candidate;
nor is it the business of the court to examine each candidate and
record its opinion. Since the Selection Committee constituted by
UPSC is manned by experts in the field, we have to trust their
assessment unless it is actuated with malice or bristles with mala
fides or arbitrariness.”
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35. In the case of Arabinda Rabha (supra), the Hon’ble Supreme
Court has held as under:
“ 29. It has not escaped our notice that the decision in Jitendra
Kumar [Jitendra Kumar v. State of Haryana, (2008) 2 SCC 161 :
(2008) 1 SCC (L&S) 428] has been doubted in All India Railway
Recruitment Board v. K. Shyam Kumar [All India Railway
Recruitment Board v. K. Shyam Kumar, (2010) 6 SCC 614 :
(2010) 2 SCC (L&S) 293] on the point as to
whether Wednesbury [Associated Provincial Picture Houses
Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 (CA)]
unreasonableness has been replaced by the doctrine of
proportionality. The facts in K. Shyam Kumar [All India Railway
Recruitment Board v. K. Shyam Kumar, (2010) 6 SCC 614 :
(2010) 2 SCC (L&S) 293] bear close resemblance to the facts of
the present appeal and, thus, may be noticed. Therein, the
Railway Recruitment Board (RRB) had called for applications for
appointments on Group D posts in the South-Central Railway
Zone, Secunderabad. Consequently, in excess of three lakh
candidates appeared for the written examination. Of them, ten
short of two thousand seven hundred candidates having achieved
the minimum qualifying marks in the written examination, were
called for a PET. Candidates who qualified in the PET were
called for verification, during which certain malpractices were
detected in the written examination. Additionally, there was a
deluge of allegations of mass copying, question paper leakage,
and impersonation committed during the written examination. A
vigilance enquiry was conducted and the report prima
facie revealed these abovementioned illegalities. Relying on the
vigilance report, the RRB decided to conduct a re-test of the
candidates who had obtained the minimum qualifying marks in
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the written examination. This decision was challenged by some
candidates before the Central Administrative Tribunal,
Hyderabad. The Tribunal did not find any irregularity or
illegality with the decision of the RRB, due to which the
candidates were constrained to move the High Court. Before the
High Court, the candidates termed the decision of the RRB as
arbitrary and unreasonable. The High Court agreed with the
candidates and set aside the order directing the re-test as, in the
High Court's opinion, the decision was unreasonable and
violative of the Wednesbury [Associated Provincial Picture
Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 (CA)]
principles. The RRB approached this Court in appeal.
40. Be that as it may, drawing from our joint experience on the
Bench, we can say with some degree of conviction and authority
that conducting recruitment processes in terms of executive
orders and in the absence of statutorily prescribed standards,
more often than not, invite avoidable litigation producing
undesirable results. Left to us, if any process of selection was
challenged by unsuccessful candidates on the ground of absence
of recruitment rules, or on the grounds of absence of a written
examination, or on the allegations of bias or favouritism or
nepotism which are nebulous, we would certainly not interfere in
the absence of other apparent vitiating factors. However, the
situation in the present case has taken a completely different turn.
It is the successor Government which nullified the select list.
Hence, the considerations for interference which ordinarily weigh
in the minds of the court, having regard to the peculiar fact
situation, are not exactly the same here. This aspect of the matter,
discussed in some more depth hereafter, seems to have escaped
the notice of the High Court.
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36. In the case of Pradeep Kumar Rai (supra), the Hon’ble
Supreme Court in paragraph No.17, has held as under:
“ 17. Moreover, we would concur with the Division Bench on one
more point that the appellants had participated in the process of
interview and not challenged it till the results were declared.
There was a gap of almost four months between the interview and
declaration of result. However, the appellants did not challenge it
at that time. Thus, it appears that only when the appellants found
themselves to be unsuccessful, they challenged the interview. This
cannot be allowed. The candidates cannot approbate and
reprobate at the same time. Either the candidates should not have
participated in the interview and challenged the procedure or
they should have challenged immediately after the interviews
were conducted. (See Vijendra Kumar Verma v. Public Service
Commission [Vijendra Kumar Verma v. Public Service
Commission, (2011) 1 SCC 150 : (2011) 1 SCC (L&S) 21]
and K.H. Siraj v. High Court of Kerala [K.H. Siraj v. High Court
of Kerala, (2006) 6 SCC 395 : 2006 SCC (L&S) 1345] .)”
37. This Bench is in respectful agreement with the above
exposition. Administration, particularly of a specialised scientific
organisation such as DRDO, necessarily involves an element of “play
in the joints” i.e. a margin of judgment and discretion that must be
left to the Executive, subject to only correction where constitutional
limits are transgressed. The Tribunal, in the present case, appears to
have proceeded on the premise that it was for it to determine what
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ought to have weighed with the selection committee and the
competent authority - the seniority, grade, number of awards,
residency period as Distinguished Scientist, and the like and to fault
the selection because these considerations did not, in the Tribunal’s
own assessment, receive what it considered their due weight. This is,
with respect, precisely the kind of “fussy forensic monitoring” that
T.N. Education Deptt. (supra) cautions against. The Tribunal is a
sentinel against unconstitutional excess; it is not an ombudsman
empowered to conduct a fresh de novo assessment of comparative
suitability for a post of this technical and strategic character.
38. Tested against this settled framework, we find considerable
merit in the submissions advanced on behalf of the Union of India.
The advertisement dated 12.09.2024 prescribed three essential
qualifications:
(i) That the candidate be a Scientist in the grade of Scientist
“H” or above;
(ii) That he has served a tenure as Director of a Laboratory,
Programme Director, or Corporate Director; and
(iii) That he possess at least 12 months of residual service (as
reduced by the Corrigendum dated 28.02.2023 from the
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earlier 18 months), with an M.Tech / Ph.D being merely
desirable.
39. It is not in dispute indeed it is the Tribunal’s own finding that
both respondent No.1 and respondent No.2 satisfied each of these
essential and desirable qualifications. Nowhere does the
advertisement, the SOP, or Rule 10 of the DRDS Rules, 2023
prescribe seniority, higher pay-level, or the status of ‘Distinguished
Scientist’ as opposed to ‘Outstanding Scientist’ as a criterion carrying
any weightage, leave alone a determinative one, in the selection to the
post of Director General (BrahMos). The Tribunal’s finding that
respondent No.1, being senior and holding a higher grade, ought to
have been preferred, in the teeth of an advertisement that draws no
such distinction. In our considered view it amounts to the Tribunal
reading into the Rules and the advertisement, a criterion that the rule
making and appointing authority never intended to prescribe, a course
impermissible in the exercise of judicial review, as authoritatively laid
down in the case of Dalpat Abasaheb Solunke (supra) wherein it
was held that, in terms we consider squarely applicable, that it is not
the function of a Court to sit in an appeal over the decision of a
selection committee and to scrutinise the relative merits of candidates.
Page 34 of 49
That function being the exclusive province of the duly constituted
committee possessed of the requisite expertise, interference being
permissible only on the limited grounds of illegality, patent material
irregularity in the constitution of the committee or its procedure, or
proved mala fides , none of which we find has been established on the
record before us. The relevant paragraphs of the aforesaid judgment
are reproduced hereunder:
12. It will thus appear that apart from the fact that the High Court
has rolled the cases of the two appointees in one, though their
appointments are not assailable on the same grounds, the court has
also found it necessary to sit in appeal over the decision of the
Selection Committee and to embark upon deciding the relative
merits of the candidates. It is needless to emphasise that it is not
the function of the court to hear appeals over the decisions of the
Selection Committees and to scrutinize the relative merits of the
candidates. Whether a candidate is fit for a particular post or not
has to be decided by the duly constituted Selection Committee
which has the expertise on the subject. The court has no such
expertise. The decision of the Selection Committee can be
interfered with only on limited grounds, such as illegality or patent
material irregularity in the constitution of the Committee or its
procedure vitiating the selection, or proved mala fides affecting the
selection etc. It is not disputed that in the present case the
University had constituted the Committee in due compliance with
the relevant statutes. The Committee consisted of experts and it
selected the candidates after going through all the relevant
material before it. In sitting in appeal over the selection so made
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and in setting it aside on the ground of the so called comparative
merits of the candidates as assessed by the court, the High Court
went wrong and exceeded its jurisdiction.”
40. We are equally unable to sustain the Tribunal’s finding that the
alphabetical ordering of the panel of three names sent to the
competent authority betrayed manifest arbitrariness or a pre-
determined selection. The record which the Tribunal itself extracted
discloses that respondent No.1, respondent No.2, and a third Scientist
‘H’ (Dr. Manickavasagam M.) were all awarded equal marks of 80 by
the selection committee upon interaction and discreet review of their
respective profiles. Where three candidates are found upon the very
assessment conducted by the expert body constituted for the purpose
to be equally meritorious, the sequence in which their names are
placed in the recommendatory panel, whether alphabetical or
otherwise is a matter of form, not substance, and cannot be elevated
into a badge of arbitrariness, particularly when the final choice among
the three equally-ranked names was admittedly left to the considered
discretion of the competent authority under the SOP and Rule 10.
This position finds full support in the decision of the Hon'ble
Supreme Court in the case of Samar Singh (supra) wherein it was
held that mere absence of recorded reasons for non-selection of a
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candidate from a panel does not, by itself, vitiate the selection, so
long as the committee has taken into account the criteria properly
applicable to the exercise. The relevant portion of the aforesaid
judgment are reproduced hereunder:
11. This would show that the Committee, keeping in view the
record and experience including the conceptual and leadership
abilities, achievements and potential for general management
positions, had recommended 19 IAS officers for holding the post of
Secretaries and 7 IAS officers for holding a non-secretarial post.
Merely because the minutes of the Committee do not contain the
reason for non-selection of the respondent does not mean that there
has been no proper consideration of the merits and suitability of
the respondent and as a result the selection is vitiated. From the
minutes of the Special Committee it is evident that in the matter of
empanelment of officers the Special Committee has taken into
account the criteria that are laid down for holding such selection in
para 14 of the Central Staffing Scheme and, therefore, it cannot be
said that the said selection is vitiated on account of non-inclusion
of the name of the respondent in the panel.
12. Shri Ashok Grover, learned Senior Counsel appearing for the
respondent, has laid emphasis on the remarks in ACRs about
appraisal of the performance of the respondent subsequent to his
promotion on the post of Additional Secretary to which reference
has been made by the Tribunal in the impugned judgment. The
learned counsel has submitted that since the performance has been
rated as outstanding and excellent, the Tribunal was justified in
holding that there is no proper consideration of the case of the
respondent by the Special Committee. We are unable to agree. As
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is evident from para 14 of the Central Staffing Scheme record is
one of the matters which has to be taken into consideration by the
Special Committee while making the selection. Apart from the
record there are other matters that have to be considered, namely,
merit, competence, leadership and flair for participating in the
policy-making process and the need of the Central Government
which is the paramount consideration. We are unable to hold that
since the performance of the respondent after his promotion as
Additional Secretary had been found to be excellent and
outstanding, the non-inclusion of his name from the panel by the
Special Committee must lead to the inference that there was no
proper consideration of the merit and suitability of the respondent
for empanelment by the Special Committee.”
41. Further in the case of Dr. K. Kalyana Raman (supra) wherein
it was authoritatively held that a selection committee exercising a
purely administrative (as opposed to quasi-judicial) function, is under
no legal obligation to record reasons for preferring one equally placed
candidate over another, in the absence of a specific statutory
requirement to that effect, a requirement conspicuously absent from
the SOP and the DRDS Rules, 2023, governing the present selection.
The relevant paragraphs of the said judgment are reproduced
hereunder:
7. We will first consider the second point. In the first place, it must
be noted that the function of the Selection Committee is neither
judicial nor adjudicatory. It is purely administrative. The High
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Court seems to be in error in stating that the Selection Committee
ought to have given some reasons for preferring Dr Gauri Devi as
against the other candidate. The selection has been made by the
assessment of relative merits of rival candidates determined in the
course of the interview of candidates possessing the required
eligibility. There is no rule or regulation brought to our notice
requiring the Selection Committee to record reasons. In the
absence of any such legal requirement the selection made without
recording reasons cannot be found fault with. The High Court in
support of its reasoning has however, referred to the decision of
this Court in Union of India v. Mohan Lal Capoor [(1973) 2 SCC
836 : 1974 SCC (L&S) 5 : (1974) 1 SCR 797] . That decision
proceeded on a statutory requirement. Regulation 5(5) which was
considered in that case required the Selection Committee to record
its reasons for superseding a senior member in the State Civil
Service. The decision in Capoor case [(1973) 2 SCC 836 : 1974
SCC (L&S) 5 : (1974) 1 SCR 797] was rendered on September 26,
1973. In June 1977, Regulation 5(5) was amended deleting the
requirement of recording reasons for the supersession of senior
officers of the State Civil Services. The Capoor case [(1973) 2 SCC
836 : 1974 SCC (L&S) 5 : (1974) 1 SCR 797] cannot, therefore, be
construed as an authority for the proposition that there should be
reason formulation for administrative decision. Administrative
authority is under no legal obligation to record reasons in support
of its decision. Indeed, even the principles of natural justice do not
require an administrative authority or a Selection Committee or an
examiner to record reasons for the selection or non-selection of a
person in the absence of statutory requirement. This principle has
been stated by this Court in R.S. Dass v. Union of India [1986 Supp
SCC 617 : (1987) 2 ATC 628] in which Capoor Case [(1973) 2
Page 39 of 49
SCC 836 : 1974 SCC (L&S) 5 : (1974) 1 SCR 797] was also
distinguished.
8. As to the first point we may state at the outset that giving of
reasons for decision is different from, and in principle distinct
from, the requirements of procedural fairness. The procedural
fairness is the main requirement in the administrative action. The
‘fairness’ or ‘fair procedure’ in the administrative action ought to
be observed. The Selection Committee cannot be an exception to
this principle. It must take a decision reasonably without being
guided by extraneous or irrelevant consideration. But there is
nothing on record to suggest that the Selection Committee did
anything to the contrary. The High Court however, observed, that
Dr Kalyana Raman did not receive a fair and reasonable
consideration by the Selection Committee. The inference in this
regard has been drawn by the High Court from the statement of
objections dated February 18, 1980 filed on behalf of the Selection
Committee. It appears that the Selection Committee took the stand
that Dr Kalyana Raman did not satisfy the minimum requirement of
experience and was not eligible for selection. The High Court went
on to state that it was somewhat extraordinary for the Selection
Committee after calling him for the interview and selecting him for
the post by placing him second, to have stated that he did not
satisfy the minimum qualifications prescribed for eligibility.
According to the High Court the stand taken by the Selection
Committee raises serious doubts as to whether the deliberations of
the Selection Committee were such as to inspire confidence and
reassurance as to the related equality and justness of an effective
consideration of this case. It is true that selection of the petitioner
and the stand taken by the Selection Committee before the High
Court that he was not eligible at all, are, indeed, antithetical and
cannot co-exist. But the fact remains that the case of Dr Kalyana
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Raman was considered and he was placed second in the panel of
names. It is not shown that the selection was arbitrary or whimsical
or the Selection Committee did not act fairly towards Dr Kalyana
Raman. The fact that he was placed second in the panel, itself
indicates that there was proper consideration of his case and he
has been treated fairly. It should not be lost sight of that the
Selection Committee consisted of experts in the subject for
selection. They were men of high status and also of unquestionable
impartiality. The Court should be slow to interfere with their
opinion.”
42. As regards the finding of the Tribunal founded upon the
Confidential Note dated 20.05.2024, approved by the Hon’ble
Defence Minister, recording the Peer Committee’s observation that
DRDO had, at the relevant time, only 12 Distinguished Scientists as
against a historical strength of about 20, and that several Director
General level posts were consequently being manned by Scientists
‘H’, we are of the view that the Tribunal has drawn an inference from
the material that the material itself does not bear. The observation in
the Confidential Note is on a plain reading an institutional concern
regarding the numerical adequacy of Distinguished Scientists to
discharge functions statutorily or administratively by officers of that
rank, such as chairing certain Committees or Boards and a passing
observation that Director General posts are, for want of numbers,
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‘being occupied by’ Scientists ‘H’. It is a considerable leap
unsupported by the text of the Note itself to construe this
administrative observation as laying down a policy preference for
Distinguished Scientists over Scientists ‘H’ in selection to posts such
as Director General (BrahMos), still less as conferring upon a
Distinguished Scientist a right to preference over an equally marked
Scientist ‘H’ candidate. The Note at best reflects an aspiration that
Director General posts ideally be manned by Distinguished Scientists
where available and suitable; it does not and cannot override the
express terms of the advertisement and the SOP which prescribe
Scientist ‘H’ as the minimum eligible grade without any further
gradation or weightage.
43. We further find support for our conclusion in the decision of
the Hon’ble Supreme Court in the case of Tajvir Singh Sodhi (supra)
wherein it was authoritatively held that ‘Courts in exercising the
power of judicial review cannot step into the shoes of the selection
committee to re-assess the marks or evaluation of candidates, that
being a matter best left to the members of the committee possessed of
the relevant expertise’ and further that a candidate who has
participated in a selection process without demur cannot upon being
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found unsuccessful, turn around and question the very same process.
The relevant paragraphs of the said judgment, for ready reference, are
reproduced hereunder:
37. Thus, courts while exercising the power of judicial review
cannot step into the shoes of the Selection Committee or assume an
appellate role to examine whether the marks awarded by the
Selection Committee in the viva voce are excessive and not
corresponding to their performance in such test. The assessment
and evaluation of the performance of candidates appearing before
the Selection Committee/Interview Board should be best left to the
members of the committee. In light of the position that a Court
cannot sit in appeal against the decision taken pursuant to a
reasonably sound selection process, the following grounds raised
by the writ petitioners, which are based on an attack of subjective
criteria employed by the Selection Board/interview panel in
assessing the suitability of candidates, namely, (i) that the
candidates who had done their postgraduation had been awarded
10 marks and in the viva voce, such PG candidates had been
granted either 18 marks or 20 marks out of 20; (ii) that although
the writ petitioners had performed exceptionally well in the
interview, the authorities had acted in an arbitrary manner while
carrying out the selection process, would not hold any water.
39. It is therefore trite that candidates, having taken part in the
selection process without any demur or protest, cannot challenge
the same after having been declared unsuccessful. The candidates
cannot approbate and reprobate at the same time. In other words,
simply because the result of the selection process is not palatable
to a candidate, he cannot allege that the process of interview was
unfair or that there was some lacuna in the process. Therefore, we
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find that the writ petitioners in these cases, could not have
questioned before a court of law, the rationale behind recasting the
selection criteria, as they willingly took part in the selection
process even after the criteria had been so recast. Their
candidature was not withdrawn in light of the amended criteria. A
challenge was thrown against the same only after they had been
declared unsuccessful in the selection process, at which stage, the
challenge ought not to have been entertained in light of the
principle of waiver and acquiescence.”
44. It bears mention that respondent No.1 participated in the
selection process including the interaction on 22.10.2024 without
protest or demur as to the criteria, the composition of the selection
committee or the marking methodology and it was only upon his non-
selection that these very features of the process came to be
characterised as arbitrary.
45. We are equally guided by the observations of the Hon’ble
Supreme Court in the case of M.V. Thimmaiah (supra) which has
been relied upon in the case of M. Sathiya Priya (supra) and Tajvir
Singh Sodhi (supra) which have been dealt with at length in the
present Common Order. Further, in the case of Samar Singh (supra)
it was cautioned against speculative allegations of favouritism or
predetermination unsupported by cogent material precisely the
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infirmity that afflicts the finding of ‘manifest arbitrariness’ recorded
by the Tribunal on the strength of an unproduced and unverified
WhatsApp message, the contents of which were never placed on
record either before the Tribunal or before us. For ready reference,
the relevant paragraphs of M.V. Thimmaiah (supra) are reproduced
hereunder:
17. We gave our thoughtful consideration to this allegation. There
is no correlation with this selection. It is too far-fetched to connect
with this case that Shri Subir Dutta who was given the residential
site in lieu of his service rendered to the State of Karnataka, would
necessarily favour the candidates. The shortlisting was done by the
Screening Committee headed by the Chief Secretary along with
four Secretaries of the State and there was no mala fide intention in
shortlisting of these persons; now to think that just because Shri
Dutta was allotted some land so that necessarily he would favour
these selected candidates only is nothing but a figment of
imagination of the appellants. To connect the selection with the
previous allotment of land to Shri Subir Dutta has hardly any
connection between the two.
18. In the selection process Shri Subir Dutta was one of the
members along with others. All the officers who were to be selected
belonged to Karnataka State and it is not specific that any of the
selected candidates has in any manner actively associated with the
allotment of land to Shri Subir Dutta. It is too remote to connect the
selection of these candidates with the allotment of the site to Shri
Subir Dutta. We do not find any connection that any of the selected
candidates has in any manner directly or indirectly associated
himself in the allotment of the site in favour of Shri Subir Dutta. As
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it appears from the file which was summoned by the High Court
that the proposal was mooted out by the Chief Secretary and it was
approved by the Chief Minister. Therefore, there appears no direct
or indirect connection with the selection of candidates and
allotment of residential site in favour of Shri Subir Dutta. As such,
the allegations are too far-fetched to render the entire selection
invalid on the ground of so-called mala fides. This is purely a flight
of imagination and we strongly reject the allegation of mala fide
against Shri Subir Dutta, the Chairman of the Selection
Committee.”
46. We do not doubt that the touchstone of Articles 14 and 16 of
the Constitution of India as elucidated in the case of E.P. Royappa
(supra) and in the case of Ramana Dayaram Shetty (supra) applies
with full rigour to selections for public appointment and that State
action which is arbitrary or which departs from self-imposed
standards to the prejudice of some while favouring others, falls foul of
these guarantees. But arbitrariness, within the meaning of these
authorities, connotes action without any principle or without any
rational nexus to the object sought to be achieved. It does not connote
a bona fide, structured selection among equally qualified candidates
made by an expert committee and ratified by a statutorily empowered
competent authority, merely because a Court or Tribunal applying its
own yardstick of what ought to have mattered, would have made a
Page 46 of 49
different choice. On the material before us, respondent No.2 was not
shown to have been favoured through any deviation from the
eligibility criteria published in the advertisement, any departure from
the SOP, or any material extraneous to the selection process. On the
contrary, he satisfied every prescribed criterion, was found, upon the
very assessment conducted by the selection committee, to be equally
meritorious with respondent No.1 and was thereafter selected by the
competent authority in the bona fide exercise of the discretion vested
in it under Rule 10 of the DRDS Rules, 2023 and the SOP.
47. Governance is not a science of exactitude, nor is administration
arithmetic of ranks where the topmost figure alone may claim the
crown. Between the letter of a rule and the life of an institution there
must always remain what the law, in its wisdom, has called the play
in the joints that small but indispensable margin of movement without
which the machinery of the State would seize and stand still. When
three equals stand before the appointing authority, each having
crossed every threshold the rules prescribe and each having been
weighed in the same scales by the same expert hands, the choice of
one among them is not the exercise of caprice but the exercise of trust
& compatibility, a trust which the Constitution has reposed in the
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executive and not in the Courts and compatibility which should be left
with the Government / Executive. To insist that every such choice be
justified afresh before a judicial forum, sifted syllable by syllable and
measured against the private yardstick of the reviewing body, is to
convert administration into perpetual litigation and the administrator
into a defendant in his own office.
48. The Courts are sentinels upon the wall, vigilant against the
transgression of constitutional limits; but they are not inspectors
within the chamber auditing each ordinary act of judgment that falls
squarely within the executive's own domain. Where no rule is broken,
no bias is shown, and no extraneous consideration is proved, the
decision of the executive must be allowed to stand, not because it is
beyond question, but because the Constitution has entrusted that
question to another, and judicial restraint in such a case is not
abdication but fidelity to the separation of powers. In order for the
government to provide for good governance, there is always an
element of flexibility left in the hands of the government. particularly
when matters of selection and more particularly when the selection is
in between two or more equals. This is what is meant by "play in the
joints" in the earlier paragraphs..
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49. In light of the foregoing discussion, we are of the considered
view that the Tribunal exceeded the legitimate bounds of judicial
review in setting aside the appointment of respondent No.2 as
Director General (BrahMos). The Tribunal substituted its own
subjective assessment of the comparative worth of seniority, grade,
awards, and residency period for the collective, expert judgment of
the selection committee and the considered decision of the competent
authority, which is impermissible in law, more so in respect of a
selection to a post of such technical complexity and strategic
sensitivity. Touching as it, does upon a matter of national security
and defence preparedness, where the restraint counselled in the cases
of S.L. Dutta (supra) and T.N. Education Deptt. (supra) applies with
its fullest force. The question of law framed is therefore answered in
favour of the Union of India.
50. Writ Petition No.126 of 2026 accordingly stands allowed. The
order dated 29.12.2025, passed by the Tribunal in OA No.021/02253
of 2024, is set aside. Consequently, Writ Petition No.127 of 2026
also stands allowed on similar lines.
Page 49 of 49
51. As a sequel, miscellaneous petitions pending if any, shall stand
closed. However, there shall be no order as to costs.
_________________
P. SAM KOSHY, J
_______________________________
NARSING RAO NANDIKONDA, J
Date: 22.09.2026
Note: L.R. Copy to be marked
(B/o) GSD