Holding

The choice between direct recruitment and promotion is an executive discretion under the Act and Rules, and the statutes do not compel the corporation to consider promotion first or to consult the Public Service Commission on the mode of recruitment.

Summary

The Calcutta Municipal Corporation needed to fill the post of Chief Municipal Engineer (Civil) and selected Nilangshu Bhushan Basu by direct recruitment in consultation with the State Public Service Commission, as permitted by the Calcutta Municipal Corporation Act, 1980 and the 1985 Rules. The Calcutta High Court set aside the selection, holding that the corporation should have first considered promotion of departmental candidates and that the Public Service Commission should have been consulted on the choice of recruitment mode, deeming the selection arbitrary and violative of Article 16. On appeal, the Supreme Court examined the statutory provisions and held that the Act and Rules merely allow the appointing authority to choose either direct recruitment or promotion, without mandating a preference for promotion. The Court further ruled that the decision on recruitment mode is an executive policy matter, not subject to judicial interference, and that the High Court’s requirement to consult the Commission on the mode was unsupported. Consequently, the Court found no violation of equality principles, no procedural irregularity in the assessment of candidates, and set aside the High Court’s order, allowing the appeal and dismissing the Special Leave Petition.

Issues considered

Whether the Calcutta Municipal Corporation Act, 1980 and its Rules require that promotion be considered before direct recruitment when both modes are available.
Whether the Mayor-in-Council must consult the State Public Service Commission before deciding the mode of recruitment.
Whether the selection process violated Article 16 of the Constitution by being arbitrary or discriminatory.
Whether the lack of a break‑up of interview marks or the interpretation of "responsible post" invalidates the selection.

Legislation cited

Calcutta Municipal Corporation Act, 1980s. 14(3)(a), s. 14(4)

Subjects

recruitmentpromotionpublic service commissionexecutive discretionadministrative lawArticle 16municipal corporationdirect recruitmentappointment

Judgment

NILANGSHU BHUSHAN BASU ETC. A
v.
DEB K. SINHA AND ORS. ETC.

AUGUST 31, 200 I

[S. RAJENDRA BABU AND BRIJESH KUMAR, JJ.] B

Service Law:

Calcutta Municipal Corporation Act, 1980: Section 14.
c
Calcutta Municipal Corporation (Recruitment of Officers appointed by
Mayor-in-Council) Rules, I 985, Appendix VII.

Selection by direct recruitment-Appointment of Chief Municipal
Engineer in consulation with Public Service Commission-High Court set
aside the selection on the ground that the guidelines followed in the selection D
arbitrmy-lt also held priority to be given to departmental candidates to
promote them subject to merit and suitability and if not feasible to go for
direct recruitment-On appeal, held, if rules permit, appointment by direct
recruitment or by promotion imposing any condition would amount to
legislating a provision in the Statute and would amount to interference in
administrative function of appointing authority-Judicial bodies not to sit in E
judgment over the wisdom of executives in choosing mode of recruitment.

Experience in responsible post not not mean experience in just below
post-Selection cannot be thrown out .on the ground that there was no break
up of marks-Assessment of merit on the basis of work experience and personal p
interview by expert body cannot be discarded

The recruitment to the post of Chief Municipal Engineer (Civil) was
made in accordance with the provisions of the Calcutta Municipal Corporation
Act, 1980 and Calcutta Municipal Corporation (Recruitment of Officers
appointed by Mayor-in-Council) Rules 1985. As per appendix VII to the rules G
at S.No.8, qualification was prescribed for selection and appointment of Chief
Engineer (Civil) by direct recruitment as well as by promotion. As per section
14(3)(a) of the Act, the Corporation in consulation with the Public Service
Commission selected candidate for the said post by direct recruitment. High
Court set aside the selection holding that there was no guideline followed for
493 H
494 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A selecting the mode of recruitment viz. direct selection or by promotion and
viewed that when both modes are available, first to choose the process for
recruitment by promotion; that if no suitable candidate was available then
direct recruitment could be resorted to; that otherwise it amounts to arbitrary
and discriminatory exercise of powers by the appointing authority; and that
the Public Commission should have been consulted by the Corporation as to
B the mode of recruitment. Hence this appeal. The connected SLP relates to
the same appointment.

Allowing the appeal and dismissing the Special Leave Petition, the Court

C HELD: I.I. The provisions of the Calcutta Municipal Corporation Act,
1980 or the Calcutta Municipal Corporation (Recruitment of Officer
appointed by Mayor-in-Council) Rules, 1985 do not substantiate the
propositions as laid down by the High Court. When the rules permit
recruitment to a post either by direct recruitment or by promotion leaving
the decision to the appropriate authority, it would be difficult to lay down
D that process of recruitment by promotion must necessarily be adopted first.
As a matter of fact it would amount to legislating a provision in the statute.
(498-E-FJ

State of Andhra Pradesh and Anr. v. Sadanandan and Ors., AIR (1989)
SC 2060, relied on.
E
1.2. Modes of recruitment and category from which the recruitment
should be made are all matters which lies in the exclusive domain of the
executive. It is not for the Ji.:licial bodies to sit in judgment over the wisdom
of the executive in choosing the mode of recruitment or the categories from
which the recruitment should be made as these are policy decisions to be taken
F by the executive. Such decisions are purely administrative in nature. A perusal
of the record indicates that the question of mode of recruitment was discussed
by Mayor-in-Council. Therefore, contents of the note should not be doubted
for the sufficiency of discussion or correctness of decision taken.
(499-B-C; E(
G
1.3. As per clauses (a) of sub-section (3) of Section 14, appointment to
the given post shall be made by Mayor-in-Council in consultation with State
Public Service Commission. The word 'recruitment' includes any method viz.
appointment, selection, promotion or deputation provided for inducting a
person into public service. However, in Section 14(3) the word 'recruitment'
H has not been used. Therefore, provision of law in no way leads to the
NILANGSHU BHUSHAN BASU v. DEB K. SINHA [BRIJESH KUMAR, J.] 495
conclusion that Public Service Commission should be consulted for taking A
decision as to the mode of recruitment. [499-H; 500-A]

K. Narayanan and Ors. v. State of Karnataka and Ors., [1994] Supp. (1)
44; referred to.

1.4. The method of direct recruitment is permissible under the Rules. B
It was an open selection based on merit. Therefore it cannot be said that
method of direct recruitment as adopted brought about any unreasonable
result, or it was discriminatory. There has been no violation of Article 16 of
the Constitution in any manner. Hence the order of the High Court is not
sustainable. [510-8, C, FJ
c
2. The selection cannot be thrown out merely on the contention that
there was no break up of marks or it should have been according to the
petitioners. The assessment of candidates merits on the basis of their work
experiences and personal interview by the expert body cannot be discarded
on such grounds. (503-E-F]
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6356 of
1998.

From the Judgment and order dated 18.9.98 of the Calcutta High Court
in W.P. No. 524 of 1998.
WITH E
SLP (C) No. 15062 of 1998.

Dipankar Guptl!, Bijan Kumar Ghosh and Pranab Kumar Mullick for
the Appellant.

V.R. Reddy and Tapas Ray, Anil Agarwalla, K.V. Vijayakumar, K.V. F
Vishwanathan, Shyamal Ganguli, Gaurav Jain and Ms. Abha Jain for the
Respondents.

The Judgment of the Court was delivered by

BRIJESH KUMAR, J. The present appeal is preferred against the G
judgment and order dated September 18, 1998 passed by a Division Bench
of the Calcutta High Court, allowing the writ petition and setting aside the
selection of the appellant for the post of Chief Municipal Engineer (Civil) of
the Calcutta Municipal Corporation.

Whereas the S.L.P. No. 15062/98 is preferred against another judgment H
496 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A of the Calcutta High Court dated August 11, 1998, dismissing the writ petition
filed by Subhendu Maiti & Ors. challenging the same selection though on
different grounds. Since both the matters relate to the same selection and for
the same post, they have been listed and heard together. Hence, common
order.

B The post of Chief Municipal Engineer (Civil) fell vacant in Calcutta
Municipal Corporation. The recruitment to such posts is made in accordance
with the provisions of the Calcutta Municipal Corporation Act 1980 and
Calcutta Municipal Corporation (Recruitment of officers appointed by Mayor-
in-Council) Rules 1985. Section 14 of the Calcutta Municipal Corporation
C Act ('Act' for short) deals with officers and employees of the Corporation.
Clause (f) of Section 14 (I) provides for such number of Deputy Municipal
Commissioners and Chief Municipal Engineers as the Mayor-in-Council may,
from time to time, determine. Sub-sections (3) and (4) of Section 14 of the
Act are quoted below:

D "(3 )The other officers referred to in clauses (e) to U) of sub-section
(I) shall be appointed

(a) by the Mayor-in-Council in consultation with the State Public
Service Commission, or
(b) by the State Government in consultation with the Mayor-in-
E Council, by notification, from amongst persons who are or have
been in the service of Government, if the Mayor-in-Council so
decides
(4) The method of, and the qualifications required for , recruitment,
and the terms and conditions of service including conduct, discipline
F and control of officers appointed by the Mayor-in-Council shall be
such as may be prescribed.

The posts of Chief Municipal Engineers are referable to clause (f) of sub-
section (I) of Section· 14. Hence the appointment to the said posts is to be
G made in accordance with clauses (a) and (b) of sub-section (3) of Section 14.
The Calcutta Municipal (Recruitment of officers appointed by Mayor-
in-Council) Rules I 985 (For short, "Rules") Jay down the qualification and
other conditions for recruitment of the officers of the Municipal Corporation.
The post of Chief Municipal Engineer (Civil) is at SI. No.8 of the Appendix
H VII to the Rules. It lays down qualification for selection and appointment of
NILANGSHU BHUSHAN BASU v. DEB K. SINHA [BRIJESH KUMAR, J.] 497

Chief Municipal Engineer (Civil) by direct recruitment as well as for A
appointment by promotion. These qualifications are as follows:

"8. Chief Municipal Engineer (Civil) Rs.2000-125/2-2,2375:

Qualifications and age under clause (a) of sub-section (3) of.Section
14 of the said Act:- B

- (A) For direct recruitment - Essential

(a) A citizen of India.

(b) (A degree in Civil Engineering from a recognized University or
its equivalent. C
(c) 12 years' experience as an Engineer in a responsible post or
posts in Government service or Statutory Bodies or in an
Engineering or Construction concerns of repute, Ia.st basic pay
drawn being not less than Rs. 1,800.

(d) Age not more than 45 years on the !st day of January of the year D
of recruitment, relaxable for well-qualified or well experienced
candidates. Desirable: A post graduate degree or diploma in Civil
Engineering Public Health Engineering,

B. For promotion:
E
(a) From officers possessing 2 years experience in the post
immediately belo"':' and total I 0 years experience iii Municipal
Engineering Service with a Civil Engineering degree or diploma
from a recognized University or its equivalent;
(b) No age bar. "
F
The Corporation proceeded to select a candidate for the post of Chief
Municipal Engineer (Civil) by direct recruitment, in consultation with the
Public Service Commission. The selection was held and the present appellant
(Respondent No.5 in the Writ Petition) was duly selected. The High Court
has set aside the selection on the ground that recruitment to the post of Chief G
Municipal Engineer (Civil) can either be by direct recruitment or by promotion.
It has been held that there is no guideline as to in what circumstances
recruitment should be through process of direct selection or by promotion.
Therefore, there is an element of arbitrariness in deciding as to which mode
of recruitment should be adopted. The High Court was of the view when both
modes are available, process for recruitment by promotion from amongst the H
498 SUPREME COURT REPORTS (2001] SUPP. 2 S.C.R.

A departmental candidates should be resorted to first and in case suitable
candidates are not available, method of direct recruitment should be adopted
otherwise it will amount to arbitrary and discriminatory exercise of power as
against the departmental officers as the departmental candidates also have
some legitimate expectations of being considered for appointment to the
B higher posts. The relevant observations and the findings of the High Court is
quoted below:

" .... We have no hesitation in saying and holding that whenever such ---
an eventuality arises or may arise, the Corporation should first consider
the case of appointment by promotion and, only when it decides in
consultation with the Commission that appointment by promotion is
c not desirable or feasible or not required for any purpose or reason, it
will have the option of adopting the method of direct recruitment for
filling up such post. There is a logic behind exercising first option in
favour of promotion The logic is that when you have a whole lot of
officers down below in the hierarchy available to you, is it not your
D duty to first consider their worth, merit and suitability, in consultation
with the Commission and only then to decide whether any one of
them is worthy and suitable of holding that office and, only after such
decision is taken and you find that none is suitable to be promoted,
to go in for direct recruitment."

E The provisions of the Act or the Rules do not substantiate the above
proposition, as laid. According to the High Court, taking a decision
straightaway for direct recruitment without first examining the worth of the
departmental candidates, is arbitrary. It has also been held that the Public
Service Commission should have been consulted by the Corporation while
F taking a decision as to whether recruitment should be by direct recruitment
or by promotion.

We feel that once the rules permit recruitment to a post either by direct
recruitment or by promotion leaving the decision to the appropriate authority,
it will be difficult to say or lay down that process of recruitment by promotion
G must necessarily be adopted first. As a matter of fact, it would amount to
legislating a provision in the Statute.

In absence of any ruies to that effect, it would be an administrative
function of the appointing/ appropriate authority to take a decision as to
Which method should be adopted for recruitment on any particular post. It
H may depend on various factors relevant for the purpose e.g. status of the post,
NILANGSHU BHUSHAN BASU v. DEB K. SINHA [BRJJESH KUMAR, J.] 499
its responsibilities and job requirement,. the suitable qualifications as well as A
the age as may be desirable may also be taken into consideration while
making such an administrative decision. In this connection, on behalf of the
appellant- the selected candidate a decision reported in AIR 1989 S.C. 2060
State of Andhra Pradesh and Anr. v. Sadanandam and Ors. has been relied
upon. It has been observed as also quoted in the impugned judgment " ... We B
need only point out that the mode of recruitment and the category from
which the recruitment to a service should be made are all matters which are
exclusively within the domain of the executive. It is not for the judicial
bodies to sit in judgment over the wisdom of the executive in choosing the
mode of recruitment or the categories from which the recruitment should be
made as they are matters of policy decision falling exclusively within the C
purview of the executive."

From the above observations it is clear that such a decision is purely
administrative in nature. The High Court on perusal of the record found that
the matter was considered, and has also reproduced an official note in that
connection from the record of the Corporation. The note of the Municipal D
Commissioner is also quoted. It is dated 26.3.1997 and reads as follows:

"As discussed in MIC, we should go in for selection of the best
candidate through open competition"

The above note of the Municipal Commissioner indicates that the question of E
mode of recruitment to the post of Chief Municipal Engineer (Civil), was
discussed by the Mayor-in-Council and thereafter and on the basis thereof it
was decided to have best candidate through open competition. It is difficult
for the Court and also not feasible to further go into the matter doubting the
'note' quoted above or about the sufficiency of the discussion in the MIC or
correctness of the decisions taken. The fact thus remains that the Mayor-in- F
Council discussed the matter and decided to go in for direct recruitment. It
has not been submitted before us that the MIC had no authority to take such
a decision or that the decision taken suffers from mala-fides. There is no
basis to come to a conclusion that process of promotion must necessarily be
adopted first and in the event of non-availability of suitable candidate, the G
direct recruitment can be resorted to.

So far the contention that Mayor-in-Council should have consulted the
Public Service Commission, in taking a decision as to whether recruitment is
to be made by direct recruitment or by promotion, in our view has no force.
All that is provided in clause (a) of sub-section (3) of Section 14 is that H
500 SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

A appointment to the given posts shall be made by Mayor-in-Council in
consultation with the State Public Service Commission and clause (b) provides
for appointment by State Government in consultation with Mayor-in-Council
from among the persons who are or have been in the service of the
Government, if the Mayor-in-Council so decide. A reading of sub-sections
B (3) and (4) of Section 14 by no means leads us to the conclusion that Public
Service Commission is to be consulted for taking a decision as to which
mode of recruitment should be adopted. In this connection learned counsel
for the Respondent has referred to a decision reported in 1994 Supp (!)
S.C.C. 44 K. Narayanan and Ors. v. State of Karnataka and Ors .. Our
·attention has been particularly drawn to Paragraph 6 of the judgment where
C it is observed : "The word 'recruitment' is comprehensive to include any
method provided for inducting a person into a public service. Appointment,
selection, promotion, deputation are all well-known methods of recruitment".

This observation only indicates the extent of the meaning of the word
'recruitment' which may include appointment as well within its folds besides
D other steps necessary for making an appointment. But in Section 14 (3) it is
provided that such officers shall be "appointed" by the Mayor-in-Council in
consultation with the State Public Service Commission. The word 'recruitment'
has not been used. Therefore, the observations made in the case of Narayanan
& Ors. (Supra) would not help the respondents in support of their contention
E that the State Public Service Commission should have been consulted even
for taking the decision as to which mode of recruitment namely, direct
recruitment or by promotion, should be adopted. It is also to be noticed that
anofoer mode of appointment is provided in clause (b) of sub-section (3) of
Section 14 of the Act, namely, the State Government in consultation with the
Mayor-in-Council may make an appointment from amongst persons who are
F or have been in the service of the Government. This method of appointment
would be adopted if"the Mayor-in-Council so decides" (emphasis supplied).
It may further be pointed out that sub-section (4) of Section 14 of the Act,
amongst other things, provides that method of recruitment shall be such as
may be prescribed. The provisions indicated above namely sub-sections (3)
G it clauses (a) and (b) and sub-section (4) of Section 14, leave no scope for
the argument that Mayor-in-Council should have consulted the Public Service
Commission before taking a decision as to whether the appointment is to be
made by direct recruitment' or by promotion.

It has next been submitted that the departmental officers have been
H discriminated against since only those departmental officers could apply who
NILANGSHU BHUSHAN BASU v. DEB K. SINHA [BRIJESH KUMAR, J.] 501

responded to the qualification laid down for the candidates for direct A
recruitment more particularly about the age, since maximum age limit was 45
years. In this connection it may be observed that the qualifications have been
prescribed in the rules including the upper age limit for an applicant. It is
infonned that there were forty outside candidates and eight others working
in the Department. From amongst the 48 candidates, the appellant was selected,
who is said to have been working as an Executive Engineer in the department. B
According to the learned counsel for the respondent he would become senior
and an officer even higher to the Dy. Chief Engineer, who have either not
been selected or were not able to apply because of the age bar or for any such
reason. It is submitted that ignoring the senior officers working in the
department or placing junior officers above them would lead to only C
unreasonable results. It may be observed that method of direct recruitment
was adopted as permissible under the rules. Anyone responding to the
qualification was free to apply including the departmental candidates. Some
of the petitioners in the other Writ· Petition are those who· had applied but
remained unsuccessful. It was an open selection based on merit and not
seniority. Therefore, it cannot be argued that method of direct recruitment as D
adopted brought about any unreasonable results or it was discriminatory. In
this connection it may also be mentioned here that learned counsel for the
appellant submitted that post graduate qualification was one of the desirable
qualification prescribed under the rules. It is further submitted that the appellant
was the only candidate who possessed the post graduate qualification. We are E
however not on the merit of the selection. The Selection Committee made the
selection of the candidate whom it thought to be the best among the applicants.
We therefore find no force in this submission too as raised on behalf of the
respondents.

We don't find that there has been violation of Article 16 of the F
Constitution in any manner as sought to be argued on behalf of the respondents.
We further find no ground for the High Court to have held that first the
() process for promotio'n should be resorted to and in case no candidate fit to
be promoted was available then alone direct recruitment could be resorted to.
It is not a correct approach. The order of the High Court is not sustainable.
G
We may now advert to Special Leave Petition No. 15062 of 1998. It
may be noted that all the appellants in the S.L.P. took chance and participated
in the selection but they remained unsuccessful.

According to the petitioners, the experience as required for being eligible
for consideration should be on a responsible post meaning thereby on a post H
502 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A below the one for which the recruitment is being made, that is in the present
on the post of the Deputy Municipal Chief Engineer (Civil). The other
contention was that at the time of interview there has not been any break-up
of marks for different factors. Both these contentions had been rejected by
the learned Single Judge and that order has been upheld by the Division
B Bench in appeal.

Learned counsel for the petitioner failed to substantiate the submission
that experience on a "responsible post" would mean experience on the just
below post. He referred to a Circular dated April I, 1992 issued by the
Municipal Corporation (Personnel Department) . It relates to recruitment to
C 'A' Category post like that of Medical Officer, Assistant Engineer and Deputy
Assessor Collector, Deputy Treasurer etc. It has been provided that experience
on supervisory post would mean the post immediately below the post to
which promotion is to be made, for example experience on the post of Assistant
Assessor/ Assistant Collector/Assistant Treasurer etc. would be experience on
a supervisory post for promotion to the post of Deputy Assessor, Deputy
D Collector, Deputy Treasurer etc. We hardly find that this Circular would be
applicable in the case in hand. It is specific about 'A' category posts and not
for all categories and ranks. Another Circular dated 21.6.1988 has been referred
to which relates to recruitment on the post of Deputy Chief Engineer (Civil)
, Deputy Chief Engineer (Mechanical) etc. By means of the said circular
E experience on the post of Executive Engineer or on any similar post was
required. It firstly relates to the recruitment to the post of Deputy Chief
Engineer. It cannot be applied for recruitment to the post of Chief Municipal
Engineer (Civil). Such a condition is not contained in terms of required
qualification for the post of Chief Municipal Engineer (Civil). Wherever
experience on a post just below is needed, such a provision is specifically
F contained. On this basis it cannot be generally held that for every post in any
rank or category the 'responsible post' must necessarily mean the post next
below the post for which recruitment is to be made.
•
Then our attention has been drawn to Annexure · Z' to the petition
dated August 11, 1998. It is a notice issued by the Municipal Secretary
G conveying the information that meeting of the Calcutta Municipal Corporation
was to be held on August 18, 1998 at 1.00 P.M. It then indicates the agenda
according to which recommendations of the MIC were to be considered as
also the proposal of the DMC (HQ) regarding framing ofrecruitment regulation
for the post of CMC (P&D). At internal Page 5 of Annexure · Z' proposed
H qualification have been indicated and in clause (ii) it is proposed that there
NILANGSHU BHUSHAN BASU v. DEB K. SINHA [BRIJESH KUMAR, J.] 503
should be twelve years experience as an engineer in a Government/semi- A
government or a statutory body etc. with at least five years experience on a
senior post in the rank of Deputy Chief Engineer in the State Government or
its equivalent. It is further provided that last scale of pay drawn should not
be less than that of Deputy Chief Engineer, Govt. of West Bengal or its
equivalent post. This document relied upon by the petitioner is nothing but B
a mere agenda for consideration containing certain recommendations to frame
regulations for recruitment. It was in the state of proposal. Another fact
which is noticeable is that even in the proposal no such qualification is
suggested for recruitment to the post of Chief Municipal Engineer (Civil). In
our view the petitioner have completely failed to substantiate through any of
the documents referred to above that the expression "experience on the C
responsible post" would mean, in the present case, experience on the post of
Deputy Chief Engineer which is next below the post of Chief Municipal
Engineer (Civil). We find no force in this submission made on behalf of the
petitioner.

The other grievance is that no break up of the marks in the interview D
had been made for different factors taken into consideration for selecting a
candidate .. We find no substance in this submission also. The Selection
Committee awarded the marks to the different candidates as would be evident
on perusal of the judgment of the High Court. The selected candidate had got
the highest marks. The selection was by the Public Service Commission. All E
the candidates responded to the qualifications as prescribed. Jn our view the
selection c:annot be thrown out merely on such contentions as raised by the
petitioner viz. there was no break up of the marks or it was not as it should
have been according to the petitioners. All candidates possessed the required
qualification and experience, and they must have been working in different
organizations. The assessment of their merit on the basis of their work and F
experience and personal interview by the expert body cannot be discarded on
such grounds. The S.L.P. has thus no force.

In view of the discussion held above, we allow the Civil Appeal No.6356
of 1998 and set aside the judgment passed by the Division Bench of the
Calcutta High Court dated September 18, 1993. The Special Leave Petition G
(Civil) No.15062 preferred against the judgment of the Calcutta High Court
dated August 11, 1998 is dismissed.

Costs easy.

S.K.S. Appeal allowed and Petition dismissed. H