Page 1
Rep
ortable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4665 OF 2013
G. Jayalal ...Appellant
Versus
Union of India and others ...Respondents
J U D G M E N T
Dipak Misra, J.
In this appeal, the pregnability of the order dated
17.2.2012 passed by the High Court of Delhi in WP (C) No.
61 of 2012 affirming the order dated 30.11.2011 passed
by the Central Administrative Tribunal, Principal Bench,
New Delhi (for short “the Tribunal”) in O.A. No. 1290 of
2011 is called in question.
Page 2
2. The facts, as have been exposited, are that
advertisements were issued to fill up the posts of
Director General in All India Radio and Doordarshan
on 20.10.2010 and 20.12.2010 respectively.
A
Committee headed by the Chairperson, Prasar
Bharati Board, was constituted to make the
recommendations for appointment to the aforesaid
two posts.
Names of nine persons including that of
the appellant and the fourth respondent herein were
recommended to be interviewed by the Selection
Committee.
The recommendations of the Selection
Committee were forwarded to the Government of
India vide letter dated 16.3.2011 by the Member
(Personnel), Prasar Bharati.
The Committee
forwarded three names for the post of Director
General, Doordarshan and names of two persons,
that of the appellant and the fourth respondent, for
the post of Director General, All India Radio.
On
receipt of the recommendations, a letter dated
21.3.2011 was circulated by the Officer on Special
Duty in Prasar Bharati to all the Members of the
2Page 3
Selection Committee. It was mentioned in the letter
that in the special meeting held on 15.3.2011, the
Selection Board, after interviewing the candidates
and taking into account all the relevant factors, had
decided to recommend a panel of candidates for the
two posts but as the names recommended were not
put in any particular order of preference by the
Selection Board, the Government had desired that
the names in the panel be put in the order of
preference. After receipt of the letter, it was decided
by the Board to short-list the candidates in order of
preference by way of circulation. Thereafter, each
Member of the Selection Committee gave his
recommendation by way of separate endorsement.
Eight Members of the Selection Committee, that
constituted of nine Members, placed the fourth
respondent at serial No. 1 and the appellant at serial
No. 2 in order of preference for the post of Director
General, All India Radio. Five out of nine Members of
the Committee placed Shri Tripurari Sharan at serial
No. 1, Shri Ram Subhag Singh at serial No. 2, and
3Page 4
Shri L.D. Mandloi at serial No. 3 in the said order of
preference for the post of Director General,
Doordarshan. It is evident from the record that the
majority of the members of the Selection Committee
placed the fourth respondent in order of preference
at No. 1 for the post of Director General, All India
Radio and Shri Tripurari Sharan for the post of
Director General, Doordarshan. Be it noted, the
name of the appellant was also recommended for the
post of Director General, Doordarshan. The aforesaid
recommendations of the Selection Committee
indicating preference were sent to the Government
of India as per letter dated 21.3.2011 by the Joint
Secretary (B), Ministry of Information and
Broadcasting.
3. At that stage, the appellant preferred O.A. No.
1290 of 2011 before the tribunal seeking quashment
of the recommendations dated 21.3.2011 and also
sought for issuance of a direction to the respondents
to act as per the recommendations dated 15.3.2011.
Such a prayer was made as the stand of the
4Page 5
appellant was that he was placed at No. 1 in order of
preference for appointment to the post of Director
General, All India Radio.
The tribunal did not accept
the contentions raised by the appellant pertaining to
placing of names in order of preference. The plea of
mala fide pertaining to the act of any authority in the
Government in changing the decision of the Selection
Committee was also not accepted. However, the
tribunal opined that the order of preference that has
been decided on 21.3.2011 could not have been so
decided by circulation and a meeting of Prasar
Bharati Board (Selection Committee) was required to
be held for the said purpose and the decision was
required to be taken after due deliberations and
consultations amongst the Members of the Board.
Being of this view, the tribunal directed the
respondents to convene a meeting of the Board to
determine the order of merit of the candidates. It
was further observed by the tribunal that if the
outcome of the meeting would result in the
endorsement of the earlier view, nothing more was
5Page 6
required to be done. In pursuance of the order
passed by the tribunal, a meeting of the Board was
convened and the decision that was taken by
circulation was reiterated.
4. Being dissatisfied with the said confirmation, the
appellant approached the High Court as the tribunal
had foreclosed the issue by stating that if there
would be confirmation or endorsement of the earlier
view, nothing more was required to be done. Be it
noted, by the time the tribunal decided the Original
Application, the tenure of three Members had come
to an end either by virtue of retirement or expiry of
the term. It was urged before the High Court that
since three new Members of the Board had not
interviewed the candidates, they were not in a
position to take an informed view with respect to the
merits of the candidates. The High Court declined to
enter into the said arena by holding that if the
appellant is aggrieved by the decision taken in the
meeting of the Board convened pursuant to the
direction of the tribunal, it was open to file an
6Page 7
application before the tribunal. The High Court
adverted to the singular issue whether the Selection
Committee, in its meeting held on 15.3.2011, had
placed the appellant herein, in order of preference,
for the post of Director General, All India Radio, or
not. After perusing the minutes of the meeting, the
High Court opined that the recommendations could
not be interpreted to mean that the person whose
name was shown at No. 1 ranked first in order of
merit. The allegation that someone in the
Government was instrumental in influencing the
Members of the Selection Committee to change the
recommendation as decided in the meeting on
15.3.2011 to deprive the appellant of a legitimate
claim was not accepted. The High Court proceeded
to deal with the allegation of mala fide and opined
that as no particulars were given about any
Governmental authority showing any favour to any
particular candidate, the said allegations were not
acceptable. The plea of legal malice to the effect
that the Government directed Prasar Bharati Board to
7Page 8
act in a particular manner was repelled by the High
Court as the same was not based on any material.
Being of this view, the High Court dismissed the writ
petition.
5. We have heard Mr. M.N. Krishnamani, learned
senior counsel for the appellant, Mr. Paras Kuhad,
learned Additional Solicitor General, Mr. Vikas Singh,
learned senior counsel for the fifth respondent, Mr.
M.C. Dhingra, learned counsel for the fourth
respondent, Mr. Rajeev Sharma and Mr. Rajesh
Srivastava, learned counsel for the respondents.
6. Mr. Krishnamani, learned senior counsel
appearing for the appellant, has basically raised
three contentions, namely, (i) on a perusal of the
recommendations of the Selection Committee, it is
clearly demonstrable that it had sent the names in
order of preference, regard being had to the
seniority, merit and suitability, but the same was
changed by the Board which had no authority to do
so; (ii) after the tribunal had quashed the decision
taken by way of circulation, the matter was directed
8Page 9
to be reconsidered by proper deliberation but three
Members of the Selection Committee who had not
interviewed the candidates had been replaced and
hence, the decision of the Board is vitiated; and (iii)
the Government has indirectly influenced the
decision by a proposal and the same tantamounts to
legal malice which makes the selection vulnerable in
law.
7. Mr. Paras Kuhad, learned Additional Solicitor
General, has submitted that the recommendations
did not indicate any preference based on merit and,
therefore, the presumption in that regard is
absolutely erroneous. It is urged by him that the
Officer on Special Duty had clarified the position
before the tribunal that as per his understanding,
there was no preference and there was no
interference by the Government requiring the
Committee to do any act in any particular manner
and hence, there is nothing to suggest any legal
malice. He has produced the proceedings of
selection before this Court.
9Page 10
8. Mr. Dhingra, learned counsel appearing for the
fourth respondent, has submitted that the order
passed by the High Court is absolutely impregnable
and defensible and does not warrant any interference
by this Court.
9. Mr. Vikas Singh, learned senior counsel appearing
for the fifth respondent, the Director General,
Doordarshan, submitted that there was no
recommendation by preference and further nonavailability of the three Members due to their
retirement or expiry of tenure and constitution of the
Board by inducting three new Members would not
vitiate the selection. For the aforesaid purpose, he
has placed reliance on Section 4(2) of the Prasar
Bharati (Broadcasting Corporation of India) Act, 1990
(for short “the Act”) and commended us to the
decision in B.K. Srinivasan and others v. State of
Karnataka and others1
.
1
(1987) 1 SCC 658
10Page 11
10. To appreciate the aforesaid submissions, we shall
refer to the minutes of the meeting dated 15.3.2011.
The relevant part of the minutes reads as under: -
“2. The Board interviewed the following
officers (who responded to the intimation in
respect of the interview) for the post of Director
General, All India Radio: -
i. Shri G. Jayalal
ii. Shri L.D. Mandloi
iii. Shri Ashok Jailkhani
3. The Board interviewed the following
officers (who responded to the intimation in
respect of the interview) for the post of Director
General, Doordarshan: -
EXTERNAL CANDIDATES
(i) Shri Sunil Kumar Singh
(ii) Shri Ram Subhag Singh
(iii) Shri Anil Kumar Aggarwal
(iv) Shri Manoj Kumar Panda
(v) Shri Jagmohan Singh Raju
(vi) Shri Tripurari Sharan
DEPARTMENTAL CANDIDATES
(i) Shri G. Jayalal
(ii) Shri L.D. Mandloi
(iii) Shri Ashok Jailkhani
4. Taking into account the considerations of
overall merit and experience and with due
11Page 12
regard to an assessment of suitability, the
Board decided to forward recommendations to
the Government of India, as given below: -
For the post of Director General,
Doordarshan
1. Sh. L.D. Mandloi
2. Sh. Tripurari Sharan
3. Sh. Ramsubhag Singh
For the post of Director General, All India
Radio
1. Sh. G. Jayalal
2. Sh. L.D. Mandloi”
11. It has been contended that it was a
recommendation in order of preference. On a
perusal of the file, it is perceptible that after the
recommendations were sent, the OSD circulated a
letter stating that the Board had not sent the names
in order of merit or preference and, therefore, it was
necessary that the names should be short-listed in
order of preference. It is also evident from the
record that each of the Members of the Selection
Committee gave his recommendation separately on
the proposed decision circulated by the OSD. No
Member of the Selection Committee, while giving his
12Page 13
recommendation, stated that in the meeting held on
15.3.2011, the Board had recommended the names
in order of merit. It is also noticeable that one of the
Members, namely, Dr. George Verghese, who had
recommended the appellant to be placed at No. 1,
had also not mentioned that the names had already
been placed in order of preference of merit. We have
only referred to the same to indicate that the
Members of the Board had understood the minutes in
that perspective.
12. At this juncture, we think it appropriate to advert
to when preference is given on the basis of merit and
suitability. Conceptual preference, fundamentally,
would mean that all aspects, namely, merit,
suitability, fitness, etc. being equal, preference is
given regard being had to some other higher
qualifications or experience, etc. In this regard, we
may refer with profit to the dictum in Secretary,
A.P. Public Service Commission v. Y.V.V.R.
Srinivasulu and others2
wherein a two-Judge
2
(2003) 5 SCC 341
13Page 14
Bench stated about the preference. Though the
principle was laid down in the context of a particular
rule, yet we reproduce the same with profit: -
“Whenever, a selection is to be made on the
basis of merit performance involving
competition, and possession of any additional
qualification or factor is also envisaged to
accord preference, it cannot be for the purpose
of putting them as a whole lot ahead of others,
dehors their intrinsic worth or proven inter se
merit and suitability, duly assessed by the
competent authority. Preference, in the context
of all such competitive scheme of selection
would only mean that other things being
qualitatively and quantitatively equal, those
with the additional qualification have to be
preferred.”
13. In the case at hand, it is not disputed that both
the candidates were eligible. If the minutes of the
meeting which we have reproduced hereinbefore are
minutely studied, it is perceptible that three
departmental candidates were interviewed for the
post of Director General, All India Radio. The names
of the appellant and the fourth respondent were
placed at serial Nos. 1 and 2 respectively. When the
Committee recommended, it also placed them in the
same seriatim. The language used in paragraph 4 of
14Page 15
the minutes states that taking into account the
consideration of overall merit and experience and
with due regard to the assessment of suitability, the
Board decided to forward the recommendations to
the Government of India. But it does not specifically
state that the recommendations were in order of
merit or in order of preference as determined by the
Board. On the contrary, it is suggestive of the fact
that the Board has placed the names in the same
order as sent by the department for consideration.
Thus, the submission of Mr. Krishnamani that the
names were sent in order of merit or preference does
not merit acceptance.
14. The next limb of argument is that there was
interference by the Government to take the decision
in a particular manner. The said aspect is linked with
legal malice and hence, it is necessary to deal with
both the aspects in a singular compartment. The
High Court has referred to the facts in detail after
referring to the affidavit filed by the Officer on
Special Duty. In the letter circulated on 21.3.2011 by
15Page 16
the Officer on Special Duty, he had only suggested
that the Board was required to short-list the
candidates in order of preference. The decision in
entirety was left to the Board. No suggestion was
given. Mr. Krishnamani has very fairly stated that
the appellant does not intend to allege any kind of
personal mala fide but legal malice as the suggestion
had been given for short-listing the candidates which
was absolutely unnecessary. In essence, the
submission of the learned senior counsel is that the
action of the authorities is not bonafide in law. In this
context, we may refer with profit to the decision in
State of A.P. and others v. Goverdhanlal Pitti3
wherein this Court has ruled thus: -
“ “Legal malice” or “malice in law” means
“something done without lawful excuse”. In
other words, “it is an act done wrongfully and
wilfully without reasonable or probable cause,
and not necessarily an act done from ill feeling
and spite. It is a deliberate act in disregard of
the rights of others”. (See Words and Phrases
Legally Defined, 3rd Edn., London Butterworths,
1989.)”
xxx xxx xxx
3
(2003) 4 SCC 739
16Page 17
“Where malice is attributed to the State, it can
never be a case of personal ill-will or spite on
the part of the State. If at all it is malice in legal
sense, it can be described as an act which is
taken with an oblique or indirect object.”
15. Similar view has been expressed in West Bengal
State Electricity Board v. Dilip Kumar Ray4
and
Kalabharati Advertising v. Hemant Vimalnath
Narichania and others5
.
16. Tested on the anvil of the aforesaid principles of
law, it cannot be said that any wrongful act has been
done to inflict any legal injury on the appellant. It is
difficult to hold that any act has been done to
disregard or defeat his legal rights. What has been
stated by the OSD is basically requiring the Board to
short-list the names in order of preference. The
Members of the Board could have reiterated that
they had earlier recommended the names in
accordance with preference. They, we are inclined to
think correctly, did not say that the
recommendations already made were in order of
preference but gave the preference initially by
4
(2007) 14 SCC 568
5
(2010) 9 SCC 437
17Page 18
circulation and when it was set aside by the tribunal,
thereafter, by deliberation. Thus, the submission
pertaining to legal malice, being sans substratum,
stands repelled.
17. The last plank of argument of the learned senior
counsel is that the inclusion of three new Members
who had not interviewed the candidates would vitiate
the decision of the Board. The High Court has not
dealt with it and opined that if the said decision was
required to be assailed, it was open to the appellant
to knock at the doors of the tribunal. There is no
dispute from any quarter that three Members had to
be substituted because some had retired and the
tenure of some had expired.
Section 4 of the Act
deals with appointment of Chairman and other
Members. Sub-sections (1) and (2) of Section 4 read
thus: -
“4. Appointment of Chairman and other
Members. – (1) The Chairman and the other
Members, except the ex officio Members, the
nominated Member and the elected Members
shall be appointed by the President of India on
the recommendation of a committee consisting
of-
18Page 19
(a) the Chairman of the Council of States, who
shall be the Chairman of the Committee;
(b) the Chairman of the Press Council of India
established under section 4 of the Press
Council Act, 1978 (37 of 1978); and
(c) one nominee of the President of India.
(2) No appointment of Member shall be
invalidated merely by reason of any vacancy in,
or any defect in the constitution of, the
committee appointed under sub-section (1).”
18. Regulation 5 of the Prasar Bharati (Broadcasting
Corporation of India) Director General (Akashvani)
and Director General (Doordarshan) (Recruitment)
Regulations, 2001 reads as follows: -
“5. Appointing Authority : The appointment to
the post specified in column 1 of the Schedule
shall be made by the Corporation, after
consultation with the Recruitment Board
established under sub-section (1) of Section 10
of the Act.”
19. There is no cavil that three Members, who have
been appointed, have been validly appointed.
Though Mr. Vikas Singh, learned senior counsel, has
drawn inspiration from the concept of principle of
“Ganga” clause as enshrined in B.K. Srinivasan
(supra), yet the same need not be adverted to as
neither the appointment of the Member of the Board
19Page 20
nor their holding the office as Member is called in
question. The issue is slightly different.
By efflux of
time, some of the Members of the Board were
substituted and different Members were inducted.
The tribunal thought it appropriate to remit the
matter to the Board to reconsider the matter after
due deliberation. Keeping in view the minutes of the
meeting, it is manifest that the Board has gone
through the whole deliberations by the
recommending authority, as we find from the
records, and expressed the view. Thus, it was not
necessary to hold a further interview to find out the
preference as the minutes were absolutely clear as
day that no preference was given. Therefore, we do
not find any flaw in the three Members participating
in the short-listing of the names and giving
preference. That apart, the majority of the earlier
Members were there and they had given preference
in favour of the fourth respondent and, therefore,
factually, it would not have made any difference.
20Page 21
Thus analysed, we perceive no merit in this
contention.
20. In view of the aforesaid premised reasons, the
appeal is devoid of any substance and, accordingly,
stands dismissed without any order as to costs.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
May 29, 2013.
21
Rep
ortable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4665 OF 2013
G. Jayalal ...Appellant
Versus
Union of India and others ...Respondents
J U D G M E N T
Dipak Misra, J.
In this appeal, the pregnability of the order dated
17.2.2012 passed by the High Court of Delhi in WP (C) No.
61 of 2012 affirming the order dated 30.11.2011 passed
by the Central Administrative Tribunal, Principal Bench,
New Delhi (for short “the Tribunal”) in O.A. No. 1290 of
2011 is called in question.
Page 2
2. The facts, as have been exposited, are that
advertisements were issued to fill up the posts of
Director General in All India Radio and Doordarshan
on 20.10.2010 and 20.12.2010 respectively.
A
Committee headed by the Chairperson, Prasar
Bharati Board, was constituted to make the
recommendations for appointment to the aforesaid
two posts.
Names of nine persons including that of
the appellant and the fourth respondent herein were
recommended to be interviewed by the Selection
Committee.
The recommendations of the Selection
Committee were forwarded to the Government of
India vide letter dated 16.3.2011 by the Member
(Personnel), Prasar Bharati.
The Committee
forwarded three names for the post of Director
General, Doordarshan and names of two persons,
that of the appellant and the fourth respondent, for
the post of Director General, All India Radio.
On
receipt of the recommendations, a letter dated
21.3.2011 was circulated by the Officer on Special
Duty in Prasar Bharati to all the Members of the
2Page 3
Selection Committee. It was mentioned in the letter
that in the special meeting held on 15.3.2011, the
Selection Board, after interviewing the candidates
and taking into account all the relevant factors, had
decided to recommend a panel of candidates for the
two posts but as the names recommended were not
put in any particular order of preference by the
Selection Board, the Government had desired that
the names in the panel be put in the order of
preference. After receipt of the letter, it was decided
by the Board to short-list the candidates in order of
preference by way of circulation. Thereafter, each
Member of the Selection Committee gave his
recommendation by way of separate endorsement.
Eight Members of the Selection Committee, that
constituted of nine Members, placed the fourth
respondent at serial No. 1 and the appellant at serial
No. 2 in order of preference for the post of Director
General, All India Radio. Five out of nine Members of
the Committee placed Shri Tripurari Sharan at serial
No. 1, Shri Ram Subhag Singh at serial No. 2, and
3Page 4
Shri L.D. Mandloi at serial No. 3 in the said order of
preference for the post of Director General,
Doordarshan. It is evident from the record that the
majority of the members of the Selection Committee
placed the fourth respondent in order of preference
at No. 1 for the post of Director General, All India
Radio and Shri Tripurari Sharan for the post of
Director General, Doordarshan. Be it noted, the
name of the appellant was also recommended for the
post of Director General, Doordarshan. The aforesaid
recommendations of the Selection Committee
indicating preference were sent to the Government
of India as per letter dated 21.3.2011 by the Joint
Secretary (B), Ministry of Information and
Broadcasting.
3. At that stage, the appellant preferred O.A. No.
1290 of 2011 before the tribunal seeking quashment
of the recommendations dated 21.3.2011 and also
sought for issuance of a direction to the respondents
to act as per the recommendations dated 15.3.2011.
Such a prayer was made as the stand of the
4Page 5
appellant was that he was placed at No. 1 in order of
preference for appointment to the post of Director
General, All India Radio.
The tribunal did not accept
the contentions raised by the appellant pertaining to
placing of names in order of preference. The plea of
mala fide pertaining to the act of any authority in the
Government in changing the decision of the Selection
Committee was also not accepted. However, the
tribunal opined that the order of preference that has
been decided on 21.3.2011 could not have been so
decided by circulation and a meeting of Prasar
Bharati Board (Selection Committee) was required to
be held for the said purpose and the decision was
required to be taken after due deliberations and
consultations amongst the Members of the Board.
Being of this view, the tribunal directed the
respondents to convene a meeting of the Board to
determine the order of merit of the candidates. It
was further observed by the tribunal that if the
outcome of the meeting would result in the
endorsement of the earlier view, nothing more was
5Page 6
required to be done. In pursuance of the order
passed by the tribunal, a meeting of the Board was
convened and the decision that was taken by
circulation was reiterated.
4. Being dissatisfied with the said confirmation, the
appellant approached the High Court as the tribunal
had foreclosed the issue by stating that if there
would be confirmation or endorsement of the earlier
view, nothing more was required to be done. Be it
noted, by the time the tribunal decided the Original
Application, the tenure of three Members had come
to an end either by virtue of retirement or expiry of
the term. It was urged before the High Court that
since three new Members of the Board had not
interviewed the candidates, they were not in a
position to take an informed view with respect to the
merits of the candidates. The High Court declined to
enter into the said arena by holding that if the
appellant is aggrieved by the decision taken in the
meeting of the Board convened pursuant to the
direction of the tribunal, it was open to file an
6Page 7
application before the tribunal. The High Court
adverted to the singular issue whether the Selection
Committee, in its meeting held on 15.3.2011, had
placed the appellant herein, in order of preference,
for the post of Director General, All India Radio, or
not. After perusing the minutes of the meeting, the
High Court opined that the recommendations could
not be interpreted to mean that the person whose
name was shown at No. 1 ranked first in order of
merit. The allegation that someone in the
Government was instrumental in influencing the
Members of the Selection Committee to change the
recommendation as decided in the meeting on
15.3.2011 to deprive the appellant of a legitimate
claim was not accepted. The High Court proceeded
to deal with the allegation of mala fide and opined
that as no particulars were given about any
Governmental authority showing any favour to any
particular candidate, the said allegations were not
acceptable. The plea of legal malice to the effect
that the Government directed Prasar Bharati Board to
7Page 8
act in a particular manner was repelled by the High
Court as the same was not based on any material.
Being of this view, the High Court dismissed the writ
petition.
5. We have heard Mr. M.N. Krishnamani, learned
senior counsel for the appellant, Mr. Paras Kuhad,
learned Additional Solicitor General, Mr. Vikas Singh,
learned senior counsel for the fifth respondent, Mr.
M.C. Dhingra, learned counsel for the fourth
respondent, Mr. Rajeev Sharma and Mr. Rajesh
Srivastava, learned counsel for the respondents.
6. Mr. Krishnamani, learned senior counsel
appearing for the appellant, has basically raised
three contentions, namely, (i) on a perusal of the
recommendations of the Selection Committee, it is
clearly demonstrable that it had sent the names in
order of preference, regard being had to the
seniority, merit and suitability, but the same was
changed by the Board which had no authority to do
so; (ii) after the tribunal had quashed the decision
taken by way of circulation, the matter was directed
8Page 9
to be reconsidered by proper deliberation but three
Members of the Selection Committee who had not
interviewed the candidates had been replaced and
hence, the decision of the Board is vitiated; and (iii)
the Government has indirectly influenced the
decision by a proposal and the same tantamounts to
legal malice which makes the selection vulnerable in
law.
7. Mr. Paras Kuhad, learned Additional Solicitor
General, has submitted that the recommendations
did not indicate any preference based on merit and,
therefore, the presumption in that regard is
absolutely erroneous. It is urged by him that the
Officer on Special Duty had clarified the position
before the tribunal that as per his understanding,
there was no preference and there was no
interference by the Government requiring the
Committee to do any act in any particular manner
and hence, there is nothing to suggest any legal
malice. He has produced the proceedings of
selection before this Court.
9Page 10
8. Mr. Dhingra, learned counsel appearing for the
fourth respondent, has submitted that the order
passed by the High Court is absolutely impregnable
and defensible and does not warrant any interference
by this Court.
9. Mr. Vikas Singh, learned senior counsel appearing
for the fifth respondent, the Director General,
Doordarshan, submitted that there was no
recommendation by preference and further nonavailability of the three Members due to their
retirement or expiry of tenure and constitution of the
Board by inducting three new Members would not
vitiate the selection. For the aforesaid purpose, he
has placed reliance on Section 4(2) of the Prasar
Bharati (Broadcasting Corporation of India) Act, 1990
(for short “the Act”) and commended us to the
decision in B.K. Srinivasan and others v. State of
Karnataka and others1
.
1
(1987) 1 SCC 658
10Page 11
10. To appreciate the aforesaid submissions, we shall
refer to the minutes of the meeting dated 15.3.2011.
The relevant part of the minutes reads as under: -
“2. The Board interviewed the following
officers (who responded to the intimation in
respect of the interview) for the post of Director
General, All India Radio: -
i. Shri G. Jayalal
ii. Shri L.D. Mandloi
iii. Shri Ashok Jailkhani
3. The Board interviewed the following
officers (who responded to the intimation in
respect of the interview) for the post of Director
General, Doordarshan: -
EXTERNAL CANDIDATES
(i) Shri Sunil Kumar Singh
(ii) Shri Ram Subhag Singh
(iii) Shri Anil Kumar Aggarwal
(iv) Shri Manoj Kumar Panda
(v) Shri Jagmohan Singh Raju
(vi) Shri Tripurari Sharan
DEPARTMENTAL CANDIDATES
(i) Shri G. Jayalal
(ii) Shri L.D. Mandloi
(iii) Shri Ashok Jailkhani
4. Taking into account the considerations of
overall merit and experience and with due
11Page 12
regard to an assessment of suitability, the
Board decided to forward recommendations to
the Government of India, as given below: -
For the post of Director General,
Doordarshan
1. Sh. L.D. Mandloi
2. Sh. Tripurari Sharan
3. Sh. Ramsubhag Singh
For the post of Director General, All India
Radio
1. Sh. G. Jayalal
2. Sh. L.D. Mandloi”
11. It has been contended that it was a
recommendation in order of preference. On a
perusal of the file, it is perceptible that after the
recommendations were sent, the OSD circulated a
letter stating that the Board had not sent the names
in order of merit or preference and, therefore, it was
necessary that the names should be short-listed in
order of preference. It is also evident from the
record that each of the Members of the Selection
Committee gave his recommendation separately on
the proposed decision circulated by the OSD. No
Member of the Selection Committee, while giving his
12Page 13
recommendation, stated that in the meeting held on
15.3.2011, the Board had recommended the names
in order of merit. It is also noticeable that one of the
Members, namely, Dr. George Verghese, who had
recommended the appellant to be placed at No. 1,
had also not mentioned that the names had already
been placed in order of preference of merit. We have
only referred to the same to indicate that the
Members of the Board had understood the minutes in
that perspective.
12. At this juncture, we think it appropriate to advert
to when preference is given on the basis of merit and
suitability. Conceptual preference, fundamentally,
would mean that all aspects, namely, merit,
suitability, fitness, etc. being equal, preference is
given regard being had to some other higher
qualifications or experience, etc. In this regard, we
may refer with profit to the dictum in Secretary,
A.P. Public Service Commission v. Y.V.V.R.
Srinivasulu and others2
wherein a two-Judge
2
(2003) 5 SCC 341
13Page 14
Bench stated about the preference. Though the
principle was laid down in the context of a particular
rule, yet we reproduce the same with profit: -
“Whenever, a selection is to be made on the
basis of merit performance involving
competition, and possession of any additional
qualification or factor is also envisaged to
accord preference, it cannot be for the purpose
of putting them as a whole lot ahead of others,
dehors their intrinsic worth or proven inter se
merit and suitability, duly assessed by the
competent authority. Preference, in the context
of all such competitive scheme of selection
would only mean that other things being
qualitatively and quantitatively equal, those
with the additional qualification have to be
preferred.”
13. In the case at hand, it is not disputed that both
the candidates were eligible. If the minutes of the
meeting which we have reproduced hereinbefore are
minutely studied, it is perceptible that three
departmental candidates were interviewed for the
post of Director General, All India Radio. The names
of the appellant and the fourth respondent were
placed at serial Nos. 1 and 2 respectively. When the
Committee recommended, it also placed them in the
same seriatim. The language used in paragraph 4 of
14Page 15
the minutes states that taking into account the
consideration of overall merit and experience and
with due regard to the assessment of suitability, the
Board decided to forward the recommendations to
the Government of India. But it does not specifically
state that the recommendations were in order of
merit or in order of preference as determined by the
Board. On the contrary, it is suggestive of the fact
that the Board has placed the names in the same
order as sent by the department for consideration.
Thus, the submission of Mr. Krishnamani that the
names were sent in order of merit or preference does
not merit acceptance.
14. The next limb of argument is that there was
interference by the Government to take the decision
in a particular manner. The said aspect is linked with
legal malice and hence, it is necessary to deal with
both the aspects in a singular compartment. The
High Court has referred to the facts in detail after
referring to the affidavit filed by the Officer on
Special Duty. In the letter circulated on 21.3.2011 by
15Page 16
the Officer on Special Duty, he had only suggested
that the Board was required to short-list the
candidates in order of preference. The decision in
entirety was left to the Board. No suggestion was
given. Mr. Krishnamani has very fairly stated that
the appellant does not intend to allege any kind of
personal mala fide but legal malice as the suggestion
had been given for short-listing the candidates which
was absolutely unnecessary. In essence, the
submission of the learned senior counsel is that the
action of the authorities is not bonafide in law. In this
context, we may refer with profit to the decision in
State of A.P. and others v. Goverdhanlal Pitti3
wherein this Court has ruled thus: -
“ “Legal malice” or “malice in law” means
“something done without lawful excuse”. In
other words, “it is an act done wrongfully and
wilfully without reasonable or probable cause,
and not necessarily an act done from ill feeling
and spite. It is a deliberate act in disregard of
the rights of others”. (See Words and Phrases
Legally Defined, 3rd Edn., London Butterworths,
1989.)”
xxx xxx xxx
3
(2003) 4 SCC 739
16Page 17
“Where malice is attributed to the State, it can
never be a case of personal ill-will or spite on
the part of the State. If at all it is malice in legal
sense, it can be described as an act which is
taken with an oblique or indirect object.”
15. Similar view has been expressed in West Bengal
State Electricity Board v. Dilip Kumar Ray4
and
Kalabharati Advertising v. Hemant Vimalnath
Narichania and others5
.
16. Tested on the anvil of the aforesaid principles of
law, it cannot be said that any wrongful act has been
done to inflict any legal injury on the appellant. It is
difficult to hold that any act has been done to
disregard or defeat his legal rights. What has been
stated by the OSD is basically requiring the Board to
short-list the names in order of preference. The
Members of the Board could have reiterated that
they had earlier recommended the names in
accordance with preference. They, we are inclined to
think correctly, did not say that the
recommendations already made were in order of
preference but gave the preference initially by
4
(2007) 14 SCC 568
5
(2010) 9 SCC 437
17Page 18
circulation and when it was set aside by the tribunal,
thereafter, by deliberation. Thus, the submission
pertaining to legal malice, being sans substratum,
stands repelled.
17. The last plank of argument of the learned senior
counsel is that the inclusion of three new Members
who had not interviewed the candidates would vitiate
the decision of the Board. The High Court has not
dealt with it and opined that if the said decision was
required to be assailed, it was open to the appellant
to knock at the doors of the tribunal. There is no
dispute from any quarter that three Members had to
be substituted because some had retired and the
tenure of some had expired.
Section 4 of the Act
deals with appointment of Chairman and other
Members. Sub-sections (1) and (2) of Section 4 read
thus: -
“4. Appointment of Chairman and other
Members. – (1) The Chairman and the other
Members, except the ex officio Members, the
nominated Member and the elected Members
shall be appointed by the President of India on
the recommendation of a committee consisting
of-
18Page 19
(a) the Chairman of the Council of States, who
shall be the Chairman of the Committee;
(b) the Chairman of the Press Council of India
established under section 4 of the Press
Council Act, 1978 (37 of 1978); and
(c) one nominee of the President of India.
(2) No appointment of Member shall be
invalidated merely by reason of any vacancy in,
or any defect in the constitution of, the
committee appointed under sub-section (1).”
18. Regulation 5 of the Prasar Bharati (Broadcasting
Corporation of India) Director General (Akashvani)
and Director General (Doordarshan) (Recruitment)
Regulations, 2001 reads as follows: -
“5. Appointing Authority : The appointment to
the post specified in column 1 of the Schedule
shall be made by the Corporation, after
consultation with the Recruitment Board
established under sub-section (1) of Section 10
of the Act.”
19. There is no cavil that three Members, who have
been appointed, have been validly appointed.
Though Mr. Vikas Singh, learned senior counsel, has
drawn inspiration from the concept of principle of
“Ganga” clause as enshrined in B.K. Srinivasan
(supra), yet the same need not be adverted to as
neither the appointment of the Member of the Board
19Page 20
nor their holding the office as Member is called in
question. The issue is slightly different.
By efflux of
time, some of the Members of the Board were
substituted and different Members were inducted.
The tribunal thought it appropriate to remit the
matter to the Board to reconsider the matter after
due deliberation. Keeping in view the minutes of the
meeting, it is manifest that the Board has gone
through the whole deliberations by the
recommending authority, as we find from the
records, and expressed the view. Thus, it was not
necessary to hold a further interview to find out the
preference as the minutes were absolutely clear as
day that no preference was given. Therefore, we do
not find any flaw in the three Members participating
in the short-listing of the names and giving
preference. That apart, the majority of the earlier
Members were there and they had given preference
in favour of the fourth respondent and, therefore,
factually, it would not have made any difference.
20Page 21
Thus analysed, we perceive no merit in this
contention.
20. In view of the aforesaid premised reasons, the
appeal is devoid of any substance and, accordingly,
stands dismissed without any order as to costs.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
May 29, 2013.
21
