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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION  

CIVIL APPEAL NO. 7706   OF 2013

(Arising out of SLP(C) No.30361/2012)

BHAJAN SINGH                               Appellant(s)

                    :VERSUS:

STATE OF UTTARAKHAND & ORS.                 Respondent(s)

J U D G M E N T

H.L. Gokhale, J.

Leave granted.  

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 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

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for  the  record  of  the  selection  proceedings  and  

recommendations  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 (B) challenged  

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.

3. The  facts  leading  to  this  appeal  are  this  

wise - The appellant as well as respondent No.4 both  

joined as Assistant Engineers in the Respondent No.2  

Nigam.   The  appellant  joined  sometimes  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  Engineer  on  4.7.2002  whereas  

respondent No.4 came to that position on 2.7.2008.  

Subsequently the appellant became Chief Engineer on

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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  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.

4. The  challenge  to  the  appointment  of  

respondent No.4 is two-fold. Firstly that under the  

relevant  rules  regarding  the  consideration  for  

promotion to the post of Managing Director, minimum  

8 years of service as Chief Engineer is required,  

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 Director.

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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 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 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 comprise of 5 persons, namely:

(a) Chief Secretary to the State Government

(b) Principal Secretary/Secretary to the     

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 Government in the Personnel Department

(e) An expert nominated by the Chief Secretary  

to

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      the State Government.

6.    These  Rules  also  provide  for  an  officer  

belonging to the 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 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,  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:

“5(1)  Selection  for  appointment  to  the  post  of  the  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,

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leadership  qualities  and  capability  to  take quick decision, technical knowledge  of  the  subject,  special  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 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  selection committee referred to in Rule  3, along with their character rolls 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  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  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,  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  ‘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

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the  ratio  of  12.  The  average  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.  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 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.  (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.”    

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  

required to be placed before the concerned Selection  

Committee which was to decide the promotion to the  

post of Managing Director.  

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9. It was pointed out that the first charge-

sheet was framed on 5.12.2011 which contained three  

serious charges with respect to the irregularities  

committed  by  the  respondent  No.4  as  the  Member  

Secretary of the Zonal Tender 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  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 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 to the Nigam and benefiting the contractors.

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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  

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 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 met on 2.5.20012 and respondent  

No.4  was  recommended  for  being  appointed  by  its  

recommendation dated 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 19.7.2007 in respect of Birokhal  

Group of Villages Pumping Water Supply Scheme and

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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  

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 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 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 respondents in the High Court. One Shri S. Raju,  

S/o  Shri  S.  Subbiah  affirmed  two  affidavits  on

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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:-

“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 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 charge sheets cannot be  deemed  to  have  initiated  any  disciplinary  proceeding  against  respondent  No.  4  and  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 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 disciplinary proceedings was  

issued.   Now, this is a matter of the procedure to

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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 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 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 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

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then 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:-

“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 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  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 an affidavit in reply and amongst others  

gave an explanation on the allegations contained in

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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.   

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 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 it is true  

that if the selectors had looked into those charge  

sheets, 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:-

“3…. Law requires selectors to ignore

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altogether 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  allegation  or  insinuation  against  him.  The Rules, it was not contended, debarred  consideration  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  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, 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 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 contrary to the law laid  

down by this Court.  If an employee is facing a

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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 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 venerable.  The view taken by the 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 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 Authority, and the  

charge-sheet bears the signatures of the Chairman

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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  

respondent No.4’s career is damaged. It was pointed  

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.  

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  

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

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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  

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-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 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  considering  the  same,  and  the  

principles laid down by this Court in Union of India  

& Ors. Vs.  K.V. Jankiraman & Ors., (supra) would  

have squarely applied to respondent No.4’s case. His

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claim for promotion would have been kept in a sealed  

cover and he would have been asked to wait until the  

enquiry was complete.  

16. (i) As held in paragraph 29 in Jankiraman’s case  

(supra):  

“An employee has no right to promotion.  He has only a 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  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  judgment  as  

follows:-

“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 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  the  charge-memo/charge- sheet  is  issued.  The  pendency  of  preliminary investigation prior to that

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stage will not be sufficient to enable  the authorities to adopt the sealed cover  procedure.  We are in agreement with the  Tribunal on this point…..”

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 the charge sheets or keep them  

in  a  wrapper,  and  not  disclose  to  the  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.

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 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,

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either  in  his  favour  or  against  him,  has  to  be  

placed before the Selection Committee. The Chairman  

of  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.  

18. Rule 5(2) of the Rules noted above speaks of  

merit being assessed mainly on the basis of –

(i) integrity of the officer;  

(ii) leadership qualities

(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.

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  the  

purpose  of  assessing  the  merit.  The  rule  is  

sufficiently wide and requires that everything which

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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 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  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 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  

the Chairman of the Nigam did not place the relevant

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material  before  the  Selection  Committee  and  take  

necessary corrective measure.

20. We are equally or more appalled at the manner  

in 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  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.   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 requirements of Rule 5 and,

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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 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 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. Their  

full  record  will  be  placed  before  the  Selection  

Committee, and thereafter it will be decided as to  

who should be selected 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

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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 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  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 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 procedure of selection to such posts  

when there are allegations against the candidates,  

was laid down in Jankiraman’s case (supra), way back

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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 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  petitioner  who  is  an  interested  

candidate  contested  the  appointment  of  respondent  

No.4  and  which  is  how  the  suppression  of  the  

material came into light.   

23. Having decried the role of the then Chairman  

of the 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  committee,  

which is most unfortunate and deplorable to say the  

least.  Such judgments would lead to the approval of  

the appointment of persons of doubtful integrity in

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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 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.

..........................J (H.L. GOKHALE)

.........................J  (J. CHELAMESWAR)

New Delhi; August 27, 2013.