BHAJAN SINGHversusSTATE OF UTTARAKHAND & ORS.

                   [2013] 10 S.C.R. 825


                     BHAJAN SINGH                             A
                             v.
            STATE OF UTTARAKHAND & ORS.
              (Civil Appeal No. 7706 of 2013)
                    AUGUST 27, 2013
                                                              B
     [H.L. GOKHALE AND J. CHELAMESWAR, JJ.]

     Service Law - Selection - Of respondent No. 4 as
Managing Director of respondent no.2-State Water Supply
Department - Manner and merits of - Challenge to, on ground C
of non-disclosure of pending charge-sheets against
respondent no.4 to the Selection Committee - Held:
Respondent no.3 was Chairman of Respondent no.2-Nigam
and also a Member of the Selection Committee - He was fully
aware that three charge sheets were pending against D
respondent No. 4 and had in fact also approved the same
and yet he did not bring the same to the notice of the Seleclion
Committee - The Selection Committee was not apprised of
the three charge sheets at all, which was in clear breach of
the requirements of r.5 - Selection of respondent No.4 was E
clearly faulty and, therefore, set aside - Respondent no.4
relegated to the position he was occupying prior to his
selection as Managing Director of Respondent no.2 - Serious
doubt about the integrity of Respondent no.3 - Respondent
No.1-State to hold appropriate inquiry as to why Respondent F
no.3 did not place the relevant material before the Selection
Committee and take necessary corrective measure -
Uttarakhand Peyjal Sanshadhan Vikas Avam Nirman Nigam
(The Post of the Managing Director) Rules, 2011 - rr. 3, 4 and
5 - Uttar Pradesh Water Supply and Sewerage Act as G
applicable to the State of Uttarakhand - s. 96 rlw s.4(2-A) -
Public Corporation - Appointment in higher administrative
positions.

    Respondent no.4 was appointed to the post of
                            825                               H
    826     SUPREME COURT REPORTS              [2013] 10 S.C.R.

A Managing Director of Respondent no.2-Nigam pursuant
  to a decision taken by the Departmental Promotion
  Committee. The appellant, who was officiating as the
  Managing Director at the relevant time and was amongst
  the officers who were considered for promotion, filed Writ
B petition challenging the appointment of respondent No.4
  to the post of Managing Director.

      The case of the appellant was that he deserved to be
  selected and not respondent No.4. He submitted that
C three charge-sheets were pending against respondent
  No.4, and the pendency of the charge-sheets was
  certainly a factor which had to be considered while
  deciding the merit of respondent No.4. The High Court,
  however, dismissed the writ petition filed by the
  appellant, and therefore the present appeal.
0
      Allowing the appeal, the Court

          HELD: 1. Whatever was the defence of respondent
    No.4, he ought to have replied to the charge-sheet, and
E   he could not have decided it for himself that since
    according to him, the charge-sheet was not issued by the
    Disciplinary Authority, he was going to ignore the same.
    Nothing prevented him from placing on record his view
    point that the charge-sheets were motivated. That apart,
F   as is seen from the record, the Chairman of the Nigam
    had signed on the charge-sheet approving the same and
    it is, therefore, that the Inquiry Officer had issued the
    charge-sheet. The Chairman of the Nigam is the
    Secretary of the Water Supply Department. He had taken
G   some three months' time after the note was put up to him,
    to approve the charge-sheet. He was also a Member of
    the Selection Committee which consisted of 5 senior
    officers of the State. It was surely expected of him to bring
    it to the notice of the Selection Committee that charge-
H   sheets were pending against r'espondent No.4.
  BHAJAN SINGH v. STATE OF UTTARAKHAND &               827
                    ORS.
Respondent No.4 may have his defence on the merits of         A
the charges. The fact of pending charge-sheets ought to
have been placed before the Selection Committee. In the
absence of such a very vital material being placed before
the Selection Committee, the Committee went into the
aspect of determining the merit without having the benefit    B
of this vital material which was against respondent No.4.
If these charge-sheets were made available to the
Committee, it would have taken its decision after
considering the same. His claim for promotion would
have been kept in a sealed cover and he would have            C
been asked to wait until the enquiry was complete. [Para
15] [840-F-H; 841-A-D]
    Union of India v. K. V. Jankiraman & Ors, (1991) 4 SCC
109 - held applicable.                                        D
     2. Respondent No. 4 was served with three charge
sheets. The departmental proceedings will therefore have
to be deemed to have been initiated against him. The
Nigam cannot sit over the charge sheets or keep them
in a wrapper, and not disclose to the selection committee     E
until the charge sheets are either dropped or proceeded
further. Once a departmental proceeding is pending, the
claim of the employee concerned for promotion will have
to be kept in a sealed cover. [Para 16] [842-C-E]
                                                              F
     3. When any high officer is to be appointed to the
position of Managing Director, obviously his integrity has
to be gone into and the material whichever is there, either
in his favour or against him, has to be placed before the
Selection Committee. The Chairman of the Nigam has            G
certainly not conducted himself appropriately in not
placing these charge-sheets before the Selection
Committee. In absence thereof, the merit (including
      ..
absence of it) which was required to be assessed could
not be assessed correctly. ['Para 17] [842-F-H]               H
    828     SUPREME COURT REPORTS             [2013] 10 S.C.R.

A       4. Rule 5(2) of the Uttarakhand Peyjal Sanshadhan
  Vikas Avam Nirman Nigam (The Post of the Managing
  Director) Rules, 2011. is sufficiently wide and requires that
  everything which is relevant for assessing the merit, has
  to be placed before the Selection Committee. The rule
B clearly states that all these facts are to be brought to the
  notice of the Departmental Promotion Committee and the
  Committee has to consider all the material before
  deciding whether the officer was suitable for promotion.
  The relevant rule No. 5 was brought to the notice of the
c High Court. Submissions were. made thereon, and yet
  the High Court held that the law permitted the selectors
  to ignore altogether the charges inasmuch as according
  to it, the same bears only an accusation against him and
  that the integrity of a person cannot be questioned only
o on the basis of an allegation against him. The Selection
  Committee was not apprised of the three charge sheets
  at all. This was clearly in breach of Rule 5, and the High
  Court has erred il'i ignoring this aspect [Para 18 and 20]
  [843-A, D-E; 844-B-D]
E      5. The Principal Secretary to the Water Supply
  Department is the Chairman of the Nigam and is
  respondent No. 3. He was fully aware of the charge
  sheets pending against the respondent No. 4. In fact he
  had signed the same. It was his duty and responsibility
F to place these charge sheets before the Selection
  Committee of which he was a member. If the Secretary
  of the department suppresses the relevant material,
  obviously the selection will not be on merit. This in fact
  raises a serious doubt about the integrity of the then
G Chairman of the Nigam. In the circumstances the
  respondent No. 1 State of Uttrakhand is expected to hold
  appropriate inquiry as to why the Chairman of the Nigam
  did not place the relevant material before the Selection
  Committee and take necessary corrective measure ..[Para
H 19] [843-F-H; 844-A]
   BHAJAN SINGH v. STATE OF UTTARAKHAND &              829
                     ORS.
     6. The selection of respondent No.4 was clearly          A
faulted. The selection was in breach of the requirements
of Rule 5 and, therefore, it will have to be set aside.
lnas.much as respondent No.4 has worked all this time as
Managing Director, whatever salary and emoluments he
has received, though on the basis of a faulty selection,      B
will not be recovered from him. However, as a
consequence of this order, he will now be immediately
placed in the position which he was occupying prior to
his selection as Managing Director of the Nigam. It will be
for the Nigam to call for another Selection Committee and
consider whosoever are the eligible officers. [Para 21]       C
[844-E and G-H]
     7. The manner in which the facts have unfolded in
this matter is distressing and shocking. The public
corporations like the Water Supply and Sewerage Board 0
enter into the contracts of hundreds of crores of rupees.
The persons occupying high positions therein such as
that of Managing Director have a great responsibility to
see to it that these schemes are implemented honestly
and expeditiously. The officers at the high level have a
good salary and perquisites. They have got to be above E
board. To qualify for promotion to such posts, the
minimum that is expected is to have an unblemished
record. If the high ranking officers come out with a devise
to circumvent the law by suppressing the pending
charge-sheets against favoured candidate, it is a serious F
matter. The Chairman is supposed to be an IAS Officer.
These officers are given a protection under the
                                                     '
Constitution itself. If such officers are to act in breach of
the law laid down by this Court, it would result into
officers of doubtful integrity getting into higher positions. G
[Para 22] [845-C-G]
                    Case Law Reference:
    (1991) 4 sec 109        held applicable      Para 13
                                                              H
    830      SUPREME COURT REPORTS               (2013] 10 S.C.R


A       CIVIL APPELLATE JURISDICTION · Civil Appeal No.
    7706 of 2013.

         From the Judgment & Order dated 09.08.2012 of the High
    Court of Uttarakhand at Nainital in Writ Petition (S/B) No. 153
B   of 2012.

          A. Subba Rao for the Appellant.

      Ranjit Kumar, Manish Kumar, Rakesh K. Sharma,
  Rachana Srivastava, Utkarsh Sharma, Dinesh Kumar Garg,
C Abhishek Garg, Dhananjay Garg, S.K. Bandopadhyay for the
  Respondents.

          The Judgment of the Court was delivered by

          H.L. GOKHALE, J. 1. Leave granted.
D
        2. This appeal by special leave seeks to challenge the
  judgment and order dated 9.8.2012 rendered by a Division
  Bench of the Uttarakhand High Court dismissing Writ Petition
  (S/B) No.153 of 2012. That writ petition was filed by the
E appellant herein seeking to challenge the appointment of
  respondent No.4 herein to the post of Managing Director of the
  Uttarakhand Peyjal Sanshadhan Vikas Avam Nirman Nigam
  ("Nigam" for short). There were various prayers in the writ
  petition. Prayer (A) was to call for the record of the selection
F proceedings and recommendation~ of the Selection Committee
  constituted on 2.5.2012 by the Government of Uttarakhand for
  selection to the post of Managing Director and after examining
  the legality and validity of selection process, recommendations
  to quash these recommendations. Prayer (8) challenged
G repatriation of the appellant to the post of Chief Engineer which
  was his substantive post from his officiating position of
  Managing Director. Prayer (C) essentially sought consideration
  of the appellant for the post of Managing Director, if found fit
  for the said post.
H
   BHAJAN SINGH v. STATE OF UTTARAKHAND &                   831
            ORS. [H.L. GOKHALE, J.]
       3. The facts leading to this appeal are this wise - The     A
  appellant as weil as respondent No.4 both joined as Assistant
  Engineers in the Respondent No.2 Nigam. The appellant joined
  sorTJetimes in 1984 whereas respondent No.4 joined in 1977.
  Over the years, they have risen in rank and the appellant, who
  belongs to a Scheduled Caste, became Superintending              B
. Engineer on 4.7.2002 whereas respondent No.4 came to that
  position on 2.7.2008. Subsequently the appellant became Chief
  Engineer on 8.2.2005 which post he is presently continuing to
  occupy. As far as respondent No.4 is concerned, he came in
  that position on 20.1.2011. He could become Managing             C
  Director on 3.5.2012 pursuant to the Departmental Promotion
  Committee's decision. The appellant was officiating as the
  Managing Director at the relevant time, he was amongst the
  officers who were considered for promotion and it is his case
  that he deserved to be selected and not the respondent No.4.     D

     4. The challenge to the appointment of respondent No.4
is two-fold. Firstly that und~r the relevant rules regarding the
consideration for promotion to the post of Managing Director,
minimum 8 years of service as. Chief Engineer is required, E
which respondent No.4 did not have. It is also pointed out that
respondent No.4 came in the position of Superintending ·
Engineer much after the appellant became Chief Engineer. This
being the position, the submission is that respondent No.4 was
not eligible for being considered for the post of Managing
                                                                 F
Director.

     5. Be that as it may, the second challenge to the
appointment of respondent No.4 was to the manner and merits
of the selection of respondent No.4 for the post of Managing
Director and in our view, this is a much more basic objection      G
which we must look into. There are rules framed for the
appointment to the post of Managing Director known as the
Uttarakhand Peyjal Sanshadhan Vikas Avam Nirman Nigam
(The Post of the Managing Director) Rules, 2011. They are
                                                                   H
    832         SUPREME COURT REPORTS             [2013] 10 S.C.R.


A framed under Section 96 read with sub-section (2-A) of Section
  4 of the Uttar Pradesh Water Supply and Sewerage Act as
  applicable to the State of Uttarakhand. Rule 3 of these rules
  provides that the selection to the post of Managing Director
  shall be made through a Selection Committee which will
B comprise of 5 persons, namely:

          (a)    Chief Secretary to the State Government

          (b)    Principal Secretary/Secretary to the

c                State Government in the Water Supply Department

          (c)    Principal Secretary to the State Government in the
                 Public Enterprises Department

          (d)    Principal Secretary/Secretary to the State
D                Government in the Personnel Department

          (e)    An expert nominated by the Chief Secretary to the
                 State Government.

       6. These Rules also provide for an officer belonging to the
E Scheduled Castes or other backward classes of citizens,
  nominated by the Chief Secretary to be on the Committee if
  the officers referred to in clauses (a} to (e} do not belong to
  any Scheduled Caste or other backward classes. Rule 4 of
  these Rules provides that only those Engineers of the Nigam
F shall be eligible for selection to the post of Managing Director
  who, amongst others, as per sub-clause (3) are holding the post
  of Chief Engineer Level-II in the Nigam and have completed at
  least 25 years of continuous service as Assistant Engineer,
G Executive Engineer, Superintending Engineer and Chief
  Engineer Level-II in the Nigam.

         7. It is Rule 5 of these rules which is more relevant as far
    as this case is concerned. This Rule reads as follows:

H
BHAJAN SINGH v. STATE OF UTTARAKHAND &                  833
         ORS. [H.L. GOKHALE, J.]
 "5(1) Selection for appointment to the post of the             A
 Managing Director of the Nigam shall be made on the
 basis of merit.    ·

 (2) The 'Merit' shall be assessed mainly on the basis of
 integrity of the officer, leadership qualities and capability 8
 to take quick decision, technical knowledge of the subject,
 spec;ial achievements/contribution and capacity to
 execute the work easily like qualities. Entries in. the
 Annual Character Roll special entries, other records
 available in the personal file and other facts brought to C
 the notice of the Departmental Promotion Committee
 shall be considered for the purpose.
 (3) The Principal Secretary/Secretary to the State
 Government in the Drinking Water Department shall
 prepare a list of eligible person and place it before the      D
 selection committee referred to in Rule 3, along with their
 character roils and other records pertaining to them.
 (4) The Selection Committee shall consider the cases of
 eligible persons on the basis of the character rolls for ten   E
 years immediately preceding the year in which the
 selection is made and other records, referred to in sub-
 rule (2).

 (5) Annual entries of at least 08 years out of the last ten
 years entries during the period of service on the post just    F
 below the promotional post must be available.

 (6) For the purpose of assessment of the annual entries
 of the character rolls, the entries of the entire service
 period of the officers shall be taken into consideration,      G
 however, the entries of the last 10 years shall be given
 special consideration. The entries shall be categorized
 as 'Outstanding', 'Very Good', 'Good', Fair/Satisfactory
 and 'Adverse'. For entries of 12 months 10 marks for
 'Outstanding', 08 marks for 'Very Good', 5 marks for           H
    834       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A         'Good', zero marks for 'satisfactory/fair' and 05 negative
          marks for 'adverse· entry shall be awarded The marks
          obtained for the period less than 12 months shall be
          deducted from the total marks of months for which the
          entries are assessed, in the ratio of 12. The average
B         monthly marks shall obtained by total number of months
          (the entries of which are assessed) and by multiplying the
          same by 12 average annual marks shall be obtained.
          The Officer securing more than 08 average annual marks
          shall be considered fit for selection on the basis of merit.
c         Senior most in the cadre amongst the persons who are
          considered fit for selection shall be recommended for
          appointment against the post.

          (7) The name of the candidate, whose even one out of
          he two entries immediately before the year of selection
D         is adverse or whose integrity during the last five years
          preceding the year of selection is doubtful in the annual
          confidential entry or by special adverse entry, shall not
          be considered.

E         (8) If in selection on merit, any candidate has been
          pushed down, he/she shall be informed that he/she has
          been recommended on account of non-availability of
          post or being classified under 'Unfit' category for
          promotion, as the case may be."
F
       8. It was submitted on behalf of the appellant before the
  High Court that three charge-sheets were pending against
  respondent No.4, and the pendency of the charge-sheets was
  certainly a factor which had to be considered while deciding
  the merit of respondent No.4. This was an aspect which was
G required to be placed before the concerned Selection
  Committee which was to decide the promotion to the post of
  Managing Director.

      9. It was pointed out that the first charge-sheet was framed
H on 5.12.2011 which contained three serious charges with
   BHAJAN SINGH v. STATE OF UTTARAKHAND &                     835
            ORS. [H.L. GOKHALE, J.]
  respect to the irregularities committed by the respondent No.4     A
  as the Member Secretary of the Zonal lender Committee when
  he was the Executive Engineer in the Construction Division,
· Pauri, during 1.6.1995 to 19.7.2007. Charge No.1 thereof
  alleged of not complying with the departmental procedure for
  deciding the tenders concerning the work of laying and jointing    B
  of pipelines and appurtenant works from Nanghat source to
  Molthaghat under Nanghat Potable Water Supply Scheme,
  resulting into avoidable delay in reaching the benefits of the
  scheme to the general public. Charge No.2 was regarding the
  procedure for inviting, opening and acceptance of the tenders      C
  and non-compliance thereof requiring re-tendering, concerning
  the same Nanghat Potable Water Supply Scheme, resulting into
  cost over-run and time over-run. Charge No.3 was regarding
  the manner in which the technical bids were decided concerning
 the said Scheme, ultimately resulting into loss of Rs.49.17 lacs    D
 to the Nigam and benefiting the contractors. These objections
 were raised in the Audit Report of 2008-2009 and accepted
  by the Accountant General. This charge-sheet called upon the
  respondent No.4 to inform the undersigning Inquiry Officer in
 writing whether he wanted to examine or cross-examine any           E
 witness. Evidences in support of the charges were mentioned
 along with the charges. The charge-sheet also required the
  respondent No.4 to submit written statement. The charge-sheet
 was signed by the Inquiry Officer for and on behalf of the Nigam,
 and was approved by the Chairman of the said Nigam, whose           F
 approval and signatures are also to be seen by the side of the
 signatures of the Inquiry Officer.

     10. It is material to note that no reply was filed to this
charge-sheet by respondent No.4. The Selection Committee             G
met on 2.5.20012 and respondent No.4 was recommended for
being appointed by its recommendation da~d 3.5.2012. It was
specifically mentioned in paragraph 4 of the writ petition that
the second charge-sheet was dated 3.3.2012 concerning the
working of respondent No.4 during the period 18.9.2000 to            H
    836       SUPREME COURT REPORTS              [2013] 10 S.C.R.


A 19.7.2007 in respect of Birokhal Group of Villages Pumping
  Water Supply Scheme and the third charge-sheet dated
  9.4.2012 was concerning the scheme of utilization of sewage
  for irrigation purpose for the Veer Chander Singh Garhwali
  Audyogik University during 18.11.2000 to 30.6.2007. The
B submission on behalf of the appellant was that this material,
  namely, that the charge-sheets were pending against
  respondent No.4, was not placed before the Selection
  Committee at all. There is no dispute, whatsoever, that
  respondent No.4 had not replied to the charge-sheets nor with
C respect to the fact that pendency of the charge-sheets against
  respondent No.4, was not brought to the notice of the Selection
  Committee. The Division Bench of the High Court has given
  importance only to the aspect of seniority of the engineers
  concerned, and although the issue with respect to the integrity
D of the officer, to be appointed to the high position of Managing
  Director, was raised in this writ petition the same has been
  decided against all canons of settled laws.

         11. (i) Various affidavits were filed on behalf of the
E   respondents in the High Court. One Shri S. Raju, S/o Shri S.
    Subbiah affirmed two affidavits on 26.6.2012. One affidavit he
    affirmed in his capacity as Principal Secretary, Department of
    Pey Jal, on behalf of Respondent No. 1 Government of
    Uttrakhand. In paragraph 17 thereof he stated as follows:-

F         "17. That perusal of the letter dated 5.12.2011, 3.3.2012
          and 9.4.2012 do not mention that these letters have been
          issued, or the alleged charge sheets with these letters
          have been issued, under any disciplinary proceedings.
          These letters do not also mention that prior to issuance
G         of these letters at any point of time an explanation from
          respondent No. 4 was called for or any order of initiating
          disciplinary proceeding was issued, as such the Principal
          Secretary or the Government on receiving the proposal
          came to the conclusion that the said letters/alleged
H         charge sheets cannot be deemed to have initiated any
  BHAJAN SINGH v. STATE OF UTTARAKHAND &                      837
           ORS. [H.L. GOKHALE, J.]
     disciplinary proceeding against respondent No. 4 and            A
     accordingly the same was not mentioned in the note
     before the Selection Committee."

      The officer has sought to contend that these charge sheets
do not mention that they have been issued under any                  8
disciplinary proceedings. By stating so he has betrayed his
ignorance of the legal position that the disciplinary proceedings
begin with the issuance of the charge-sheet. He has further
stated that prior to issuance of the charge sheets no explanation
was called from respondent No. 4, nor any order of initiating        C
disciplinary proceedings was issued. Now, this is a matter of
the procedure to be followed by the concerned authority while
initiating the disciplinary proceeding. In a given case a show
cause notice may be issued, prior to the issuance of the charge
sheets, but that is not the rule. In any case, it is the Principal   D
Secretary of the Department who in his capacity as the
Chairman of the Nigam was the Disciplinary Authority. He has
counter signed on the charge sheet. The affidavit is a miserable
attempt to explain as to why the charge sheets were not
mentioned in the note placed before the Selection Committee          E
by the then Secretary of the Department.

      (ii) In another affidavit affirmed by him on the same day in
his capacity as the Chairman of the Nigam, he stated in
paragraph 4 thereof that he had joined the duties on the present
post on 1.5.2012, and his predecessor in office at the relevant      F
point of time, was one Mr. Utpal Kumar Singh, IAS. In paragraph
5 of this affidavit he stated that he had gone through the
concerned file and upon perusal of the files it appeared to him
that the three draft charge sheets were prepared. He has further
stated that the three draft charge sheets were sent to the then      G
Chairman for approval by the petitioner, and the then Chairman
had approved the same and sent it with his covering letter to
respondent No. 4 for calling his explanation before initiation of
any disciplinary proceeding in the matter. In paragraph 9 he
specifically stated amongst others as follows:-                      H
    838      SUPREME COURT REPORTS               [2013] 10 S.C.R.


A         "9 ....... The said charge sheets appear to have been
          approved and sent by the then Chairman to the
          respondent No. 4 for calling his explanation before
          commencing any disciplinary proceedings in the
          matters. No Enquiry Officer has been appointed in the
B         matter till now.

       Thus, in so many words, while explaining his own position,
  he has contradicted the previous Secretary through this
  affidavit. On reading these two affidavits one thing is very clear
C that charge- sheets were approved by the then Chairman and
  thereafter sent to the respondent No. 4 calling for his
  explanation, though for the reasons best known to the Nigam
  the disciplinary proceedings have not proceeded thereafter..

        (iii) As far as respondent No. 4 is concerned he affirmed
D an affidavit in reply and amongst others gave an explanation
  on the allegations contained in three charge sheets. He has
  however not denied having received these charge sheets. He
  has also not stated that he has filed any reply to these charge-
  sheets.
E
        12. In paragraph 2 of the impugned judgment the High
  Court noted the contention that under Rule 5 of the Rules
  concerning appointment to the post of Managing Director, the
  Selection Committee has to look into the merit of the candidate
F concerned. It also noted the contention on behalf of the appellant
  that the Selection Committee was not in the know of the three
  charge sheets, and it did not have the appropriate opportunity
  to determine the integrity of the selected candidate. In
  paragraph 3 of its judgment however the Court observed that
G it is true that if the selectors had looked into those charge
  she~ts, they may have reacted in some other manner. At the
  same time the Court held that mere issuance of a charge sheet
  does not affect integrity of an employee of a statutory authority.
  Thereafter, the court observed in paragraph 3:-
H
  BHAJAN SINGH v. STATE OF UTTARAKHAND &                      839
           ORS. [H.L. GOKHALE, J.]
    "3 ..... c. Law requires selectors to ignore a/together a         A
    charge-sheet issued against a Government employee in
    as much as, the same bears only an accusation against
    him and integrity of a person cannot be questioned only
    on the basis of an a/legation or insinuation against him.
    The Rules, it was not contended, debarred consideration           B
    of a candidate for promotion against whom a disciplinary
    proceeding is pending."

    And then in paragraph 4 and 5 as follows:-

           "4. We think that integrity of the officer, to be looked   C
     at by the selectors, is such integrity, which is reflected in
     the records of the candidate appearing before the
     selectors. Issuance of a charge sheet may be reflected
     in the record, but the substance of the charge-sheet
     cannot be treated as part of the record. As aforesaid,           D
     mere issuance of a charge-sheet does not prevent the
     selectors from selecting a candidate against whom the
     charge-sheet has been issued."

           "5. We, accordingly, find no scope of interference         E
     with the selection under challenge merely on the basis
     that the charge-sheets, thus issued, were not placed
     before the selectors."

     13. Mr. Subba Rao, learned counsel for the appellant
submitted that these observations of the High court were totally      F
contrary to the law laid down by this Court. If an employee is
facing a charge-sheet, and is called upon to give an
explanation, surely such an employee cannot be considered for
promotion at that stage. His claim for promotion will have to be
kept in sealed cover as held by a bench of three Judges of this       G
Court in Union of India Vs. K. V. Jankiraman & Ors., reported
in (1991) 4 SCC 109. The present case is clearly one of
suppression of the relevant material and not bringing it before
the Selection Committee. This made the selection of the
respondent No. 4 still more vulnerable. The view taken by the         H
    840      SUPREME COURT REPORTS               [2013) 10 S.C.R.


A   High Court is totally untenable and the judgment had to be set
    aside.

        14. On the other hand, it was submitted by Mr. Ranjit
  Kumar, learned senior counsel appearing for respondent No.4
8 that the submissions advanced in the High Court were mainly
  with respect to the issue of seniority. He contended that, in any
  case, the charge-sheet dated 5.12.2011 was not issued by the
  Disciplinary Authority and may not be taken cognizance of.
  Now, as can be seen, it is the Chairman who is the Disciplinary
C Authority, and the charge-sheet bears the signatures of the
  Chairman approving the charge-sheet. His signature is
  appended side by side with the signature of the Inquiry Officer,
  and therefore the submission has to be rejected. It was further
  submitted that the charge-sheet was a motivated document and
  it was an attempt by the appellant herein to see to it that
0
  respondent No.4's career is damaged. It was poin~ed out that
  the appellant himself was officiating as Managing Director at
  the relevant time and, therefore, he had chosen to rake up these
  controversies at that very time.

E      15. It is not possible to accept this submission. The
  charges in the charge-sheet are concerning the period starting
  from 2006 onwards. Whatever was the defence of respondent
  No.4, he ought to have replied to the charge-sheet, and he could
  not have decided it for himself that since according to him, the
F charge-sheet was not issued by the Disciplinary Authority, he
  was going to ignore the same. Nothing prevented him from
  placing on record his view point that the charge-sheets were
  motivated. That apart, as is seen from the record, the Chairman
  of the Nigam had signed on the charge-sheet approving the
G same and it is, therefore, that the Inquiry Officer had issued the
  charge-sheet. The Chairman of the Nigam is the Secretary of
  the Water Supply Department. He had taken some three
  months' time after the note was put up to him, to approve the
  charge-sheet. He was also a Member of the Selection
H Committee which consisted of 5 senior officers of the State. It
   BHAJAN SINGH v. STATE OF UTTARAKHAND &                    841
            ORS. [H.l. GOKHALE, J.]
was surely expected of him to bring it to the notice of the          A
Selection Committee that charge-sheets were pending against
respondent No.4. Respondent No.4 may have his defence on
the merits of the charges. All that we can say is that the fact of
pending charge-sheets ought to have been placed before the
Selection Committee. In the absence of such a very vital             B
material being placed before the Selection Committee, the
Committee went into the aspect of determining the merit without
having the benefit of this vital material which was against
respondent No.4. If these charge-sheets were made available
to the Committee, it would have taken its decision after             C
considering the same, and the principles laid down by this Court
in Union of India & Ors. Vs. K. V. Jankiraman & Ors., (s.upra)
would have squarely applied to respondent No.4's case. His
claim for promotion would have been kept in a sealed cover
and he would have been asked to wait until the enquiry was           D
complete.

     16. (i) As held in paragraph 29 in Jankiraman's case
(supra):

    "An employee has no right to promotion. He has only a            E
    right to be considered for promotion. The promotion to a
    post and more so, to a selection post, depends upon
    several circumstances. To qualify for promotion the least
    that is expected of an employee is to have an
    unblemished record. That is the minimum expected to              F
    ensure a clean and efficient administration and to protect
    the public interest."

    (ii) On the sealed cover procedure this Court observed in
paragraph 16 of the said judgme..nt as follows:-                     G
          " 16. On the first question, viz. as to when for the
    purposes of the sealed cover procedure the disciplinary!
    criminal proceedings can be said to have commenced,
    the Full Bench of the Tribunal has held that it is only when
                                                                     H
    842       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A         a charge-memo in a disciplinary proceedings or a charge-
          sheet in a criminal prosecution is issued to the employee
          that it can be said that the departmental proceedings!
          criminal prosecution is initiated against the employee.
          The sealed cover procedure is to be resorted to only after
B         the charge-memo/charge-sheet is issued. The pendency
          of preliminary investigation prior to that stage will not be
          sufficient to enable the authorities to adopt the sealed
          cover procedure. We are in agreement with the Tribunal
          on this pointc.. "
c       In the present case the respondent No. 4 was· served with
  three charge sheets. As per the above dicta, the departmental
  proceedings will therefore have to be deemed to have been
  initiated against him. The Nigam cannot sit over ithe charge
  sheets or keep them in a wrapper, and not disclose to the
D selection committee until the charge sheets are either dropped
  or proceeded further. Once a departmental proceeding is
  pending, the claim of the employee concerned for promotion
  will have to be kept in a sealed cover.

E        17. It was also submitted that the charge-sheet dated
  5.12.2011 was in fact a show cause notice. We are not
  impressed at all by this submission which is in fact negated the
  second affidavit of Shri S. Raju. In any case, whether it was a
  charge-sheet or a show cause notice, it was a document
F imputing allegations against respondent No.4. When any high
  officer is to be appointed to the position of Managing Director,
  obviously his integrity has to be gone into and the material
  whichever is there, either in his favour or against him, has to
  be placed before the Selection Committee. The Chairman of
G the Nigam has certainly not conducted himself appropriately in
  not placing these charge-sheets before the Selection
  Committee. In absence thereof, the merit (including absence
  of it) which was required to be assessed could not be assessed
  correctly.
H
   BHAJAN SINGH v. STATE OF UTTARAKHAND &                      843
            ORS. [H.L. GOKHALE, J.]
    18. Rule 5(2) of the Rules noted above speaks of merit             A
being assessed mainly on the basis of -

      (i)     integrity of the officer;

      (ii)    leadership qualities
                                                                       B
      (iii)   capability to take quick decision

      (iv)    technical knowledge of the subject;

      (v)     special achievements/contribution and capacity to
              execute the work easily and like qualities.              c
     Thereafter, it states in terms that the entries in the Annual
Character Roll, special entries, other records available in the
personal file, and other facts brought to the notice of the
Departmental Promotion Committee shall be considered for               D
the purpose of assessing the merit. The rule is sufficiently wide
and requires that everything which is relevant for assessing the
merit, has to be placed before the Selection Committee. The
rule clearly states that all these facts are to be brought to the
notice of the Departmental Promotion Committee and the                 E
Committee has to consider all the material before deciding
whether the officer was suitable for promotion.

     19. The Principal Secretary to the Water Supply
 Department is the Chairman of the Nigam. He was respondent            F
No. 3 to the Writ Petition and is respondent No. 3 in this Civil
Appeal. He was fully aware of the charge sheets pending
against the respondent No. 4. In fact he had signed the same.
It was his duty and responsibility to place these charge sheets
before the Selection Committee of which he was a member. If            G
the Secretary of the department suppresses the relevant
material, obviously the selection will not be on merit. This in fact
raises a serious doubt about the integrity of the then Chairman
of the Nigam. In the circumstances we expect the respondent
No. 1 State of Uttrakhand to hold appropriate inquiry as to why        H
    844      SUPREME COURT REPORTS                 (2013] 10 S.C.R.

A   the Chairman of the Nigam did not place the relevant material
    before the Selection Committee and take necessary corrective
    measure.

       20. We are equally or more appalled at the manner in
B which the concerned division bench of the High Court has
  handled the matter. The High Court has totally ignored the law
  on this aspect. The relevant rule No. 5 was brought to the notice
  of the High Court. Submissions were made thereon, and yet
  the High Court held that the law permitted the selectors to ignore
C altogether the charges in as much as according to the Division
  Bench, the same bears only an accusation against him and that
  the integrity of a person cannot be questioned only on the basis
  of an allegation against him. As stated earlier we are not
  concerned with the merits of the allegations. The Selection
  Committee was not apprised of the three charge sheets at all.
0
  This was clearly in breach of Rule 5, and the High Court has
  erred in ignoring this aspect.

         21. In view of these facts, the selection of respondent No.4
    was clearly faulted. The selection was in breach of the
E   requirements of Rule 5 and, therefore, it will have to be set
    aside. The High Court has also seriously erred in not allowing
    the writ petition of the appellant herein. In the circumstances,
    we allow this appeal, set aside the judgment rendered by the
    Division Bench of the Uttarakhand High Court. Prayer (A) made
F   in the writ petition will stand granted, namely, that the selection
    and appointment of respondent No.4 will stand set aside.
    Inasmuch as respondent No.4 has worked all this time as
    Managing Director, whatever salary and emoluments he has
    received, though on the basis of a faulty selection, will not be
G   recovered from him. However, as a consequence of this order,
    he will now be immediately placed in the position which he was
    occupying prior to his selection as Managing Director of the
    Nigam. It will be for the Nigam to call for another Selection
    Committee and consider whosoever are the eligible officers.
H   Their full record will be placed before the Selection Committee,
   BHAJAN SINGH v. STATE OF UTTARAKHAND &                     845
            ORS. [H.L. GOKHALE, J.]
and thereafter it will be decided as to who should be selected        A
as the Managing Director of the Nigam. The appeal is allowed
in these terms, with costs. Respondent No.4 will pay cost of
Rs.50,000/- and Respondent No.2 Nigam will pay cost of
Rs.50,000/- to the appellant. Respondent No.2 will be at liberty
to recover this amount of cost from the then Chairman of the          B
Nigam.

      22. Before we conclude, we must accord our distress and
shock at the manner in which the facts have unfolded in this
matter. The public corporations like the Water Supply and             C
Sewerage Board enter into the contracts of hundreds of crores
of rupees. The persons occupying high positions therein such
as that of Managing Director have a great responsibility to see
to it that these schemes are implemented honestly and
expeditiously. After 67 years of independence, Indian cities and
                                                                      D
villages continue to have a serious problem of getting good
potable water to drink. There is also a serious problem of
having a proper sewerage system. The officers at the high level
have a good salary and perquisites. They have got to be above
board. To qualify for promotion to such posts, the minimum that
is expected is to have an unblemished record. The law and
                                                                      E
procedure of selection to such posts when there are allegations
against the candidates, was laid down in Jankiraman's case
(supra}, way back in the year 1991. If the high ranking officers
come out with a devise to circumvent the law by suppressing
the pending charge-sheets against favoured candidate, it is a
                                                                      F
serious matter. The Chairman is supposed to be an IAS Officer.
These officers are given a protection under the Constitution
itself. If such officers are to act in breach of the law laid down
by this Court, it would result into officers of doubtful integrity
getting into higher positions. Luckily, in this present matter, the   G
petitioner who is an interested candidate contested the
appointment of respondent No.4 and which is how the
suppres,sion of the material came into light.
     23. Having decried the role of the then Chairman of the          H
    846      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   Nigam, we cannot remain oblivious of the fact that a division
    bench presided over by the Chief Justice of the High Court has
    condoned such serious breaches in approving the suppression
    of the relevant material from the selection 6ommitte9, which is
    most unfortunate and deplorable to say the least. Such
8   judgments would lead to the approval of the appointment of
    persons of doubtful integrity in higher administrative positions.
    Apart from that, it will lead the people to doubt the integrity of
    the judges as well. Citizens have a faith in the judiciary because
    it is expected to render justice even-handedly. The members
c   of higher judiciary are granted a constitutional protection so that
    they function without fear and favour and not mis-apply the law.
    It is such orders which bring the judiciary into disrepute. We
    rather refrain from saying anything more.

    8.8.8.                                           Appeal allowed.