SC’S POWER ON EXPERTS’ BODY

Source: The Hitavada      Date: 23 Apr 2018 10:20:42


IN the judgement of the case - Union Public Service Commission v. M. Sathiya Priya delivered at the Supreme Court on April 13, 2018, Justice Mohan M. Shantanagouder and Justice Navin Sinha, have observed that in the Court’s 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 the Central Administrative Tribunal - CAT - and the High Court to sit over the assessment made by the Selection Committee as an appellate authority.

The questions as to how the categories are assessed in light of the relevant records and as to what norms apply in making the assessment, are 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 experts’ body, that is, the Selection Committee. The courts have very limited scope of judicial review in such matters.

Though, the Court is 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”. This principle has to be kept in mind while deciding such cases. However, in this case, it is abundantly clear from the affidavit filed by the UPSC that the Selection Committee, which is nothing but an expert body had carefully examined and scrutinised the experience, Annual Confidential Reports and other relevant factors which were required to be considered before selecting the eligible candidates for the 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 the 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. No doubt, the Selection Committee may be guided by the classification adopted by the State Government but, for good reasons, the Selection Committee may evolve its own classification which may be at variance with the grading given in the Annual Confidential Reports, as has been held by the Supreme Court in the case - UPSC v. K. Rajaiah and Others - (2005) 10 SCC 15, the power to classify as “Outstanding”, “Very Good”, “Good” and “unfit” is vested with the Selection Committee. That is a function incidental to the selection process.

The classification given by the State authorities in the Annual Confidential Reports is not binding on the Selection Committee. Such classification is within the prerogative of the Selection Committee and no reasons need be recorded, though it is desirable that in a case of grading at variance with that of the State Government, reasons be recorded. But having regard to the nature of function and the power confined to the Selection Committee under Regulation 5(4), it is not a legal requirement that reasons should be recorded for classifying an officer at variance with the State Government’s decision. It is relevant to note that no allegations of malice or bias were made by the first respondent at any stage of the proceedings against the Selection Committee or the UPSC. The Court has repeatedly observed and concluded that recommendation 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.

The court rarely sits as a Court of Appeal to examine the selection of a candidate; nor it is the business of the Court to examine each candidate and record its opinion. Since the Selection Committee constituted by the UPSC is manned by experts in the field, the Court has to trust their assessment unless it is actuated with malice or bristles with mala fides or arbitrariness. The Court has observed that it is not a case of pick and choose in this matter and the selection has been made rationally. The applicant-respondent No. 1 was duly considered by the Selection Committee. However, on an overall assessment of her service records, her name was not included in the select list due to the statutory limit of its size and as officers with higher grading were available for inclusion in the select list as per the provisions of Regulation 5(5) of the Regulations. Since the name of Shrimati V. Jayashree (respondent No. 6) was provisionally included in the select list and was made unconditional in the select list after her exoneration in the disciplinary proceedings she was appointed in the 2008 batch of the IPS officers. After going through entire material on record, the Court did not find any ground to agree with the reasons assigned by the CAT and the HC while coming to their conclusion. The HC has strangely made out a fresh additional point in favour of the first respondent by observing that on perusal of the records maintained by the selection committee, the HC was not able to find the grading of the officers recorded by the State Government.

In other words, the HC was of the view that since the records submitted before the Selection Committee did not include the grading of the officers recorded by the State Government, Selection Committee did not have an opportunity to take into account the grading recorded by the State Government while coming to its conclusion. The Supreme Court has said that it does not agree with these observations. Instead of securing records from the State Government, the HC has “strangely” observed that such records were not available before the Selection Committee. It was but natural for the Selection Committee to send back the records to the State Government after ending of the selection process and making the appointments. In view of these findings, the Supreme Court has set aside the judgements delivered by the CAT on April 7, 2010 and the Madras HC on June 24, 2013 in favour of the first respondent and allowed the civil appeal filed by the UPSC.