TMI Blog2000 (9) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... r. V. Karthikeyan, IAS and respondent No. 4, Mr. C.V.R. Panikar, both former Chief Secretaries of Tamil Nadu, Mala fides were imputed to both of them. The impugned order of the Central Govt. dated 7.8.80 was an order rejecting the appellant's appeal dated 10.2.78 under Rule 16 of the All India Services (Discipline and Appeal) Rules, 1963. 3. The following are the facts: 4. The appellant was appointed in the Indian Administrative Service on 7.5.1957 and was fixed in the Junior scale on 7.5.57. He was promoted to the Senior scale w.e.f. 29.1.62. He was promoted to the Selection grade w.e.f. 1.11.72, although some of his juniors were promoted to the selection grade w.e.f. 15.5.1971. His name was considered initially for promotion in the super-time scale on 30.8.1976 along with his batch mates by a Committee consisting of Mr. V. Kartikeyan, Chief Secretary to Government (3rd respondent), Mr. S. Viswanathan, the then First Member, Board of Revenue and Mr. C.V.R. Panikar, the Second Secretary to Government. The Committee recommended his supercession on the ground that there were disciplinary cases pending. But the Advisor to the Government directed that the promotions may stop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V. Karthikeyan, Chief Secretary, Tamil Nadu (3rd respondent), Sri K.S. Sivasubrahmanyam, First Member, Board of Revenue, and Sri S.P. Srinivasan, Second Secretary to Government of Tamil Nadu. The Government of India's representatives were Sri Maheswari Prasad, IAS (Secretary, Department of Personnel and Administrative Reforms, New Delhi), and Sri P.R. Dubash, IAS (Establishment Officer, Department of Personnel and Administrative Reforms, Minister of Home Affairs, New Delhi). This Committee met on 30.8.79. Because the fourth disciplinary case regarding expenditure of ₹ 20,807 on furnishing office without prior sanction was pending, (the other three having been dropped) the Committee placed its assessment of the CRs upto 31.3.77 in a sealed cover. It also considered the CRs. from 1.4.77 till 30.8.79 for promoting him to super-time scale in 1979 and placed its recommendations in another sealed cover. These two sealed covers were to be opened after conclusion of the fourth disciplinary case. 8. Ultimately, in the said fourth disciplinary case, the State Govt. issued G.O. No. 859 Public (Special A) Department on 8.4.80 imposing a punishment of 'censure'. It related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 7.8.80. The factum of the said order was intimated to the appellant by the State Govt. on 4.9.80. These orders were questioned in the present proceedings. 14. In the meantime, on 28.6.77 the Governor of Tamil Nadu, during the President's rule had dropped all the four disciplinary cases. In spite of that, according to the appellant, the fourth case was however kept pending illegally. Further the adverse remarks of 1973-77 which were based only on the allegations in these four disciplinary cases were bound to be deleted as soon as the Governor dropped the four cases, but the deletion was delayed and meanwhile the case of the appellant was considered by the Screening Committee on 30.8.79 as above stated and he was not found fit. The attack is on the selection dated 30.8.79 and the various illegalities committed in that selection. Attack is also on Sri Karthikeyan who presided over that Committee. 15. The appellant had another grievance. There were also certain items of good work relating to the appellant and these were not placed earlier in his CRs. He, therefore, filed an appeal to the Government of India. Ultimately, the Government of India directed on 29.6.78 (P. 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndue importance was given to certain very old remarks which were mere general comments in his CRs and due importance was not given to the positive aspects of his career even though they were incorporated on 17.3.79 in his CRs and in fact till the Central Govt. wrote to the State Government on 29.6.78 and directed that the positive aspects of his career were to be incorporated in the CRs, they were not even incorporated in the CRs. This was done only on 17.3.79. The adverse remarks which were proximate and on which reliance was placed by the Joint Secretary Committee were remarks whose basis was knocked down once Governor directed on 28.6.77 the dropping of all four disciplinary cases. All the four disciplinary cases were dropped by the Governor on 28.6.77 and the said remarks ought to have been expunged but they were allowed to remain in the CRs and on the basis of the said CRs, he was found not fit by the Committee on 30.8.79. They were expunged and in some respects only partially much later on 29.5.80 long after the Committee meeting on 30.8.79. The Committee's adverse recommendations contained in two sealed covers - one upto 31.3.77 and the other upto 30.8.79 - were both bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appellant in a vindictive fashion and was making adverse remarks or comments in his CRs. The position of Sri C.V. Panikar was no different. He had awarded 'Censure' in regard to the fourth disciplinary case inspite of the fact that the Governor of Tamil Nadu had earlier directed dropping of the case. Both the officers treated the appellant badly and at one point of time, the Advisor to the Governor Mr. Dave made adverse comment on this aspect. After the Advisor left Madras, his remarks which were in favour of the appellant were not given effect to. 20. On the other hand, Sri C.S. Vaidyanathan, learned senior counsel for the respondents contended that under Sub-rule 2(a) of Rule 3 of IAS (Pay) Rules, 1954, selection to the super-time scale is to be based by merit considering the entire record from the beginning of the career though with due regard to seniority. The adverse remarks before promotion in 1972 to the Selection grade could be relied upon. Suitability of officers is to be judged by evaluating their character Roll-record as a whole and general assessment of work throughout their career. In this case there were adverse remarks in his CRs throughout. There w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Government supported the orders of Central Government rejecting the appellant's appeal. 22. At the conclusion of the case, the files of the Central and State Governments were handed over to the Court. 23. On the basis of the above contentions, the following points arise for consideration: (1) Whether, the award of 'censure' in the fourth disciplinary case (relating to furnishing his office without previous sanction) by the State Government was contrary to the directions of the Governor during the President's Rule emergency and whether the State Government thereafter wanted to withdraw the reference to the UPSC and the UPSC refused to permit such withdrawal? Whether the appellant was treated fairly in respect of the said proceedings? (2) Whether the assessment of the Confidential Reports of the appellant by the Joint Secretary Committee at its meeting dated 30.8.79 was vitiated by relying upon inadmissible or trivial material and by not giving weight to positive sides of his career and also by wrongly relying upon adverse remarks whose basis was knocked down by the dropping of various charges? Whether the appellant was dealt with fairly? (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either by the executive or by the Union Public Service Commission. 27. Under Sub-Clause (a) of Article 356(1) of the Constitution of India, the President may assume to himself all or any of the functions of the Government of the state and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State. Where the President, after assumption of the powers of the State Executive, chooses to exercise those powers through the State Government, the latter acts as the agent of the President, acting on the advice of the Union Ministry, instead of the State Cabinet. In short, when the President vests the Governor with the powers of the State Government, the Governor can exercise all the powers of the State Government, without the advice of his Council of Ministers. The Governor becomes responsible to the President i.e. the Union Government which has its responsibility to the Union Parliament. The Governor can exercise the statutory power exercisable by the State Government. (See Basu, 11th Ed. Shorter Constitution, p. 1192). Once that power was exercised by the Government on 28.6.77, all the consequential pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 25.4.80 and Central Government dated 7.8.80. This is one aspect of the matter. 31. Even on merits of the fourth disciplinary case relating to the furnishing , we shall point out, by the application of Wednesbury principles, that the order of censure dated 8.4.80 must be held to be vitiated. 32. It will be noticed that in the charge dated 30.10.75 there was no allegation that the expenditure for the office room in a sum of ₹ 20,807/- was wasteful or unnecessary. The only charge was about lack of prior approval. The appellant, on his explanation dated 19.11.75 pointed out that while prior sanction was necessary, the factual position was that the post of Commissioner of Archives and Historical Research was created and he found that some civil works etc. were necessary for (i) security of the Archives, (ii) fire-fighting equipment and (iii) renovation of the research hall. The expenditure in this behalf was made with full knowledge of the senior officials of the Government through formal sanction was not obtained. He pointed out that in March 1973, just few weeks before he took over as Commissioner, he mentioned to the then Chief Secretary, Mr. Sabanayagam, the Head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a proposal to award censure. Appellant pointed out that procedure under Rule 10 of the All India Services (Discipline and Appeal) Rules, 1969 was not followed and that in the case of other officers, Sri V. Sankar, Sri C, Ram Das, Sri M. Vaithlingam, even who incurred expenditure on furnishing their offices, ran to much bigger amounts - without formal sanction - no such action as was taken against him, was taken, (see p. 190 vol. 2 of the paper book). 35. GO. 859 Public (Special A) dated 8.4.80 is the order passed by the Government under signature of Sri C.V.R. Panikar (4th respondent) imposing 'censure'. Though, the order refers to the letters of the appellant including the letter dated 24.5.75 seeking ratification, no reference at all has been made to the minutes recorded as to what the then Chief Secretary stated to him. No reference is made to the vast correspondence referred to in the explanation. The action was described only as 'irregular' in the order dated 8.4.80. It was but natural that the Governor felt on 28.6.77 that the whole thing was such an insignificant item of want of prior sanction - while none disputed its need for a newly created office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, - then the powers of Judicial review under Article 226 of the Constitution are not foreclosed. 42. While the courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committees, the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to be scrutinised by courts, within the narrow Wednesbury principles or on the ground of male fides. The judicial power remains but its use is restricted to rare and exceptional situations. We are making these remarks so that courts or tribunals may not - by quoting this case ias an easy precedent - interfere with assessment of merit in every case. Courts and Tribunals cannot sit as appellate authorities nor substitute their own views to the views of Departmental Promotion Committees. Undue interference by the Courts or Tribunals will result in paralysing recommendations of Departmental Committees and promotions. The case on hand can be a precedent only in rare cases. 43. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, and was later confirmed by the Supreme Court. The writ appeal was pending on 30.8.79, when Sri V. Karthikeyan sat as Chairman of this Committee. 47. The assessment was made on 30.8.79 in two phases, first for the period upto 31.3.77 and was kept in a sealed cover while another assessment was made for the period from 1.4.77 to 30.8.79 and kept in another sealed cover. There are various infirmities in this assessment and we shall refer to them later and we shall see if the Wednesbury principles can be applied to the assessment. Before we do so, we have to refer to certain basic principles of 'fairness' in assessment for promotion. 48. Every officer has a right to be considered for promotion under Article 16 to a higher post subject to eligibility provided he is within the zone of consideration. But the question is as to the manner in which his case is to be considered. This aspect is a matter of considerable importance in service jurisprudence as it deals with 'fairness' in the matter of consideration for promotion under Article 16. We shall therefore refer to the current legal position. 49. We shall start with State of Punjab v. Dewan Chunilal 1970(1) SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99. Thee the issue was whether uncommunicated adverse remarks could be relied upon. That case also considered the question of the relative strength of old remarks and also relevance of remarks made before an earlier promotion. Jeevan Reddy, J. speaking for the Bench laid down several important principles and we are however concerned with principles (iv) in para 34 of that judgment. The proposition was that firstly more importance would have to be attached to record of later years. Adverse remarks made before granting the earlier promotion (in a case of selection or merit promotion) must be considered to have lost the 'sting in them'. The relevant para reads as follows: (iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/ character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sling, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ikunth Nath Das. The second of these two latter cases has also to be explained. 55. In the first of these latter cases, namely, Union of India v. V.R. Seth [AIR 1994 SC 1261] the point related both to adverse remarks of a period before an earlier promotion but also to uncommunicated adverse remarks. It was held that the Tribunal was wrong in holding in favour of the officer on the ground that uncommunicated adverse remarks could not be relied upon for purposes of compulsory retirement. So far as the remarks prior to an earlier promotion this Court did not hold that they could be given as much weight as those in later years. The Court, in fact, relied upon Baikunth Nath Das case decided by three Judge Bench which had proposition (iv) in para 34 (at p. 315-316) had clearly accepted that adverse remarks prior to an earlier promotion lose their 'sting'. 56. The second case is the one in State of Punjab v. Gurdas Singh 1998(4) SCC 92. The facts there were that there were adverse remarks from 1978 prior to 1984 when the officer was promoted and there were also adverse remarks for the period 18.6.84 to 31.3.85. The compulsory retirement order was passed on 3.9.87. The said o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but their strength is substantially weakened unless of course they related to dishonesty. 58. Learned senior counsel for the State of Tamil Nadu, Sri C.S. Vaidyanathan has however relied upon the following observations of a two Judge Bench in D. Ramaswami v. State of Tamil Nadu 1982 (1) SCC 510 (Para 4): The learned Counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion. We do not say that the previous history of a government servant should be completely ignored, once he is promoted. Sometimes, past events may help to assess present conduct. The above-said observation cannot help the respondent inasmuch as, though such remarks need not be altogether omitted from consideration, they must be treated as sufficiently weakened and as having lost their sting. The casein D. Ramaswami's case on facts goes against Mr. Vaidyanathan's contentions. There the appeal of the officer was allowed by this Court. In that case, the officer started as Lower Division Clerk and rose to the position of a Dy, Commissioner of Commercial Taxes. His e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether. (6) Uncommunicated adverse remarks could be relied upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed. 60. On the basis of the above principles, we have to consider whether the Joint Screening Committee applied the correct legal principles of 'fairness'. We have also to apply Wednesbury rule and consider whether relevant facts were not considered and irrelevant facts were considered. 61. In our view, the Committee has not conformed to the standards set in Baikunth Nath Das case as to the manner in which old adverse remarks have to be treated and also as to the manner in which adverse remarks before a previous promotion on merit, should be viewed. The question also is whether trivial matters were exaggerated and positive material in favour of the officer was ignored. We shall now proceed with our reasons as to why the considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the appraisal report of 1986. Later, the adverse remarks were expunged in 1989. He was cleared for promotion in 1989. The officer's claim for consideration for promotion from 1988 was accepted by the High Court. That was set aside by this Court. But the difference between that case and the present case is that long before the meeting of the Screening Committee dated 30.8.79, the four charges were dropped by the Governor on 28.6.77 and the adverse remarks for the period from 1973 to 1977 automatically lost their sanctity and should have been selected even before 30.8.79. The deletion was made in 1980 long after the meeting of the Screening Committee. The above decision is clearly distinguishable. Here, we may also refer to the important analysis made by the Central Government in its note-file. In the office note dated 1.5.79, on the file of the Central Government, which dealt with the earlier recommendation of the Committee presided over by Sri C.V.R. Panikar on 9.6.77 and 28.6.77 the Central Government had made a very critical analysis of the adverse remarks. It said that some of the adverse remarks were closely linked up with the disciplinary cases that were dropped and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to have been considered as they were made keeping in mind the allegations in the pending disciplinary proceedings and once the proceedings were dropped, it was necessary to expunge these remarks. (This was not done, till after the adverse assessment by the Committee was made on 30.8.79.) In fact, the Central Govt. even went to the extent of saying that if the officer had sent up a petition for expunging them - they would have readily acceded to this request. (iv) Fourthly, the Joint Screening Committee in its decision dated 30.8.79 relied upon very old adverse remarks or comments. Some were made when the appellant was in Training School and in the initial years of his service. Some were made before 1.11.72 on which date the appellant was promoted to selection grade. This was not a fair assessment and is in breach of the principles laid down in Baikunth Nath Das case. Thus, the Committee gave greater importance - in its decision dated 30.8.9 to the events relating to the period when the appellant was under training at the Institute in 1957 and during the early years of his appointment and till he was given selection grade promotion in 1972, the Committee committed serious e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding Committee for organising the Statewide publicity for Flag Day 1968. The then Governor appreciated the services of the appellant and wrote to him personally on 15.11.69 about his commendable performance, (iv) Wrote 3 reports - (i) The Urban Development of Greater Madras (1970); (ii) Report on Tenancy and Land Reforms (1971) written while Director of Tenancy Records; (iii) Report on Tamil Nadu Archives (1974), written as Commissioner of Archives. Various recommendations made in these three reports were accepted and implemented by the State Govt. Regarding the slum report it was favourably noticed by this Hon'ble Court in a Constitution Bench of five Hon'ble Judges, where Chandrachud, CJ spoke for the Bench AIR 1986 SC 204, K. Chandru v. State of T.N.. Para 4 of the judgment in that case referred to the report (by name). Appellant was then the Collector of Madras. Reference was again made to the Report in para (9) of the judgment. 5.10.1972 (v) Submitted a note to the Chief Minister requesting him to promote study of modern history of Tamil Nadu, and create a post of Commissioner of Archives and Historical Research. On 6.2.1973 a post of Commissioner Archives and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant was in the IAS Training School long before he entered on his career. 64. For the aforesaid reasons, it must be held, on merits that the assessment done by the Joint Screening Committee on 30.8.79 and its acceptance by the State and the Central Government were illegal and arbitrary and liable to be set aside even within the narrow limits of Wednesbury principles. Inadmissible material was relied upon, a censure which was issued on a charge dropped was relied upon, adverse remarks which were liable to be expunged soon after the Governor's orders on 28.6.77 were continued and relied on 30.8.79 and were expunged only in 1980, undue weight was given to old remarks by deliberately digging them up and even to those before his selection grade promotion even though they had lost their sting, due weight was not given to some very good work done by him which was even commended by the Supreme Court and which resulted in beneficial administrative action. The assessment does not answer the test of 'fair' consideration under Article 16 for promotion. It must accordingly be quashed applying Wednesbury principles. We direct accordingly. Points 2 and 3 are decided in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from that fact alone. 69. But that is not the end of the matter. If the above facts stood alone, there would have been no case for imputing bias to Sri V. Karthikeyan. But there are other important facts which clearly make out a case of real likelihood of bias on the part of Sri V. Karthikeyan. We shall refer to those facts. 70. The appellant had delivered a speech at a public function on 7.9.73 criticising the 'timecapsule' buried in the precincts of the Red Fort at Delhi and said that it was full odd distortions of historical facts. The Government of Tamil Nadu started a disciplinary inquiry but later dropped the same on 25.8.77. However on 24.8.77, a news item appeared in Indian Express stating that a Government spokesman charged the appellant as trying to 'sabotage the civil services from within'. The appellant issued notice to the press correspondent and it was ultimately revealed that the statement was made by the 3rd respondent, Sri V. Karthikeyan. The appellant applied for sanction to prosecute the 3rd respondent for defamation and sought permission on 28.12.77. the government refused permission on 7.2.78. The appellant filed a writ petition in 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officers occupying very high position in the Bank in all propriety should have withdrawn from the Committee constituted for this purpose. We may not be understood as imputing any bias to them. But, in our opinion, the principle of fairness required that they should not have sat on the Board. This Court quashed the selection and directed a fresh selection by a Committee of which those two officers were not to be members. 74. The second case in which the facts were similar is the one in Tilak Chand Mangatram Obhan v. Kamala Prasad Shukla and Ors. 1995 Suppl. (1) SCC 21. There the Principal of a school who was a member of the Inquiry Committee was deeply biased against the delinquent. He had given notice to the delinquent for initiating defamation proceedings against him. It was held that the presence of the Principal on the Committee had vitiated the atmosphere for a free and fair inquiry. It was also observed that the entire inquiry was bad and the fact that there was an appeal, did not cure the defect. It was stated: Where the lapse is of the enquiry being conducted by an officer deeply biased against the delinquent or one of them being so biased that the entire enquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inquiry proceedings, if it is raised in the High Court, it is sufficient as it goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation of facts. Para 31 of the writ petition in the present case contains the allegations regarding the defamatory item published in the Indian Express and various other acts attributed to sri Karthikeyan as evidence of his bias. This theme runs through the entire writ petition spanning more than 50 pages and in the written submissions filed in the Tribunal running into more than 60 pages. 76. In our view, Sri V. Karthikeyan must have 'rescued' himself from the Committee. As he did not do so and as he participated in the decision making process and disqualified the appellant, the entire recommendations dated 30.8.79 of the Screening Committee must be treated as vitiated and invalid. 77. In the light of the above finding, we do not think it necessary to refer to the various other allegations against Sri V. Karthikeyan as regards actual mala fides and we feel that it is sufficient to go by the principle of 'real likelihood' to quash the report of the Joint Scr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifficult for those disqualified members to be substituted by other members. This Court held: It is true, the members of this Sub-Committee were appointed by a Government Resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of Government of Orissa, and the Director, Higher Education etc. There was, however, nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its Resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such non-official author-members from resigning from the committee on the ground of their interest in the matter. 81. Again, in Institute of Chartered Accountants v. L.K. Ratna 1986(4) SCC 537, this Court held that in the absence of statutory compulsion, the principle of 'necessity' does not apply. This Court observed that: In the Regulations there was nothing to suggest that decision could not be taken by the other members of the Disciplinary Committee who were not disqualified. In Election Commission of India v. Dr. Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as no nest and the adverse remarks from 1973 upto the date of promotion of the appellant's immediate junior on 16.11.77,-in so far as they are based on the four disciplinary cases that have been dropped-must be treated as non-existent. Further, the remarks in his favour throughout his career, and the good work recorded in his service book and in addition the various other reports on various aspects e.g. Labour Policy, Urban Development, Tenancy Land Reforms, Modern History, Public Access to Records, Preservation of historical records, Archives etc.; including the one which was noticed by the Supreme Court in K. Chandru v. State of Tamil Nadu AIR 1986 SC 204, have to be given their due weight. Further, the appellant's case for promotion to super-time scale is to be judged afresh by applying the same standards which were applied to other officers promoted to that scale. The appellant in his writ petition has given specific instances of cases of other officers who have been promoted to super-time scale in spite adverse remarks of a comparatively graver nature having been recorded against the said officers. We do not propose to list them. They are already part of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. We emphasise the words underlined in the above passage to the effect that the Court may in some rare situations itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary retirement. In the light of our decision on Points 1 to 5, we declare the censure on the fourth case as void and without jurisdiction and in the alternative also as liable to be quashed under Wednesbury principles. The adverse remarks of by-gone years prior to 1972 have lost all their sting. The positive factors in the appellant's favour both recorded (at the compulsion of the Central Government) and others to which we have referred to earlier as meriting consideration are, in our opinion, sufficient to entitle him for promotion to the supertime scale. The appellant's case is, in our view, no less inferior to the cases of the other officers who were conferred the similar benefit of super-time scale by the State of Tamil Nadu, details of which have been profusely given in the writ petition. For the aforesaid reasons, we quash the punishment of censure, the assessment made by the Joint Screening Committee, the orders passed by the State and Central Government refusing to grant him supertime scale and in rejecting the appeal of the appellant and we further direct as follows. 90. In the special and peculiar circumstances of the case, we direct the respondents to grant t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
