Ravi v. Union of India & Ors.

10. It is stated that it is evident from the above statutory provisions that the respondent No.2/BBB is a body constituted solely for the banking sector under the Act of 1980 with overall control of the RBI and that the respondent No.2/BBB had no jurisdiction or control over PSICs. It is further stated that the entire selection process was contrary to specific provisions of the statute and hence is void ab initio.

11. It is also stated that in undertaking the impugned selections, the respondents entirely overlooked the existing regulations in relation to appointment to the Board of Directors in PSICs, which mandate that appointments are to be made strictly on the basis of seniority, and the senior-most General Manager is to be appointed as General Manager & Director as and when vacancies arise. This system of appointment has been followed ever since the petitioner joined service in 1984, and is codified under the Circular No. F. No. A-15011/02/2008 – Ins. III dated February 16, 2012 issued by the respondent No.1 which reads as under:- ―Every time a vacancy of WTD arises due to any exit, by whatever reason, the next senior most GM, in the combined seniority list, be posted to the company where the vacancy has arisen. This may necessitate transfer of GMs from one company to other. However, it may be ensured that the person who has been transferred is left with at least one year of residual service on the date of vacancy in the other company. In case, the officer, who has more than a year of service left, is unwilling to move to the other company as WTD due to his locational preference or any other such reason, he foregoes the benefit available to WTD, in terms of Para 1 above. For this purpose, the Committee of CMDs prescribed under Para 13 of the Promotion Policy of Officers will make a suitable recommendation to the Government as per the existing practice and procedure.‖

12. It is also stated that the provisions of the impugned Circulars are contrary to the provisions of the Articles of Association of PSICs, which are binding in nature and cannot be deviated from or amended, without the prior consent of the IRDA as set out under the Companies Act, 2013 and Section 34A of the Insurance Act, 1938. Hence, any Board of Directors constituted pursuant to the impugned selection process in violation of the provisions of the Articles would be without authority of law and therefore void. Section 34A of the Insurance Act, 1938 reads as under:- ―Section 34A. Amendment of provisions relating to appointments of managing directors, etc., to be subject to previous approval of the 1[Authority].- (1) In the case of an insurer,- (a) no amendment made after the commencement of the Insurance (Amendment) Act, 1968, of any provision relating to the appointment, reappointment, termination of appointment or remuneration of a managing or whole-time director, or of a manager or a chief executive officer, by whatever name called, whether that provision be contained in the insurer‘s memorandum or articles of association, or in an agreement entered into by him, or in any resolution passed by the insurer in general meeting or by his Board of directors shall have effect unless approved by the 1[Authority];‖

13. It is stated that every Scheme made under Section 9 of the Act of 1980 is a Legislative Scheme and cannot be overridden by Executive Instructions.

14. It is further stated that vide the impugned selections conducted in August, 2020 nine vacancies which arose on the Board of Directors in different PSICs between November 2018 to July 2020 were sought to be filled and despite being eligible and meritorious and at rank 13 in the combined seniority list, the petitioner was superseded and out of the nine vacancies at least three vacancies were filled by persons junior to him in seniority as well as merit, in a premeditated manner, i.e. by respondent nos. 9, 10 and 11 who were at ranks 14, 18, 19 of the combined seniority list, respectively.

15. Similarly, vide the impugned selections undertaken in May, 2021, five vacancies which arose on the Board of Directors in different PSICs between December 31, 2020 and April 30, 2021 were sought to be filled and despite being the third senior-most candidate in the combined seniority list with excellent service record and fulfilling all the qualifications and attributes/virtues as laid down in the Circular dated February 13, 2012 and the Promotion Policy of Officers, the petitioner has not been recommended for promotion and appointment. Instead, the vacancies have been filled by persons junior to him in seniority and merit. It is the case of the petitioner that while he is at rank 3 of the combined seniority list, he has been illegally superseded by the respondent Nos. 4, 5, 6, 7 and 8 who were all junior to him and are at ranks 9, 8, 7, 6 and 4 respectively.

16. It is stated that in the impugned recommendation dated May 11, 2021, the petitioner has been kept in the Reserve List for the post of General Manager & Director in Oriental Insurance Co. Ltd. („OICL‟, for short) which itself evidences that he does not have any disqualification, and is perfectly eligible and fully qualified for appointment.

17. To safeguard the inter-se seniority of the General Managers, the Committee of Chairman and Managing Directors (“Committee of CMDs”, for short) of the PSICs, constituted under the Promotion Policy for Officers, is required to recommend transfer of General Managers from one PSIC to another at the time of appointment on the Board of Directors. For this purpose, the Committee of CMDs makes its final recommendation to the Central Government, on the basis whereof the Central Government issues the requisite transfer orders in exercise of its authority under Section 22 of the GIBNA, 1972. It is averred by the petitioner that however, the procedure prescribed in the Promotion Policy for Officers has entirely been overlooked and the functions exclusively vested in the Committee of CMDs as prescribed in the Circular dated February 16, 2012 and the Promotion Policy were conspicuously withdrawn without authority of law in an illegal and impermissible manner, and entrusted to the respondent No. 2. None of the CMDs were members of the Board which carried out the impugned selections and out of the total six members who sat on the respondent No. 2 in May, 2021, only one member was from the general insurance sector, and the remaining members had no knowledge or expertise in relation to general insurance.

18. It is also stated that the petitioner‟s Annual Confidential Report (“ACR”, for short) of the year 2020-2021 was not considered while undertaking the impugned selection process of May 2021.

19. It is further stated that before the selection, contrary to established procedure and practice laid down, vacancies were neither announced nor published on the web-portal of any of the respondents before the expiry of tenure of the incumbent. The zone of consideration, criteria and weightage for selection, process of selection, details of other candidates in the foray etc. were not circulated to the eligible candidate, and no HR agency was engaged for the process to carry out the necessary spade work as stipulated.

20. It is also the averment of the petitioner that the respondents altered the eligibility criteria for appointment to the post in question in violation of the statutory scheme, by considering and recommending for appointment, officers of Agricultural Insurance Company India Limited (“AICIL”, for short), who were ineligible, vitiating the entire procedure of selection. It is submitted that AICIL is a newly formed organisation and there is no batch parity between the employees of AICIL and other PSICs.

AICIL does not participate in the common promotion exercise conducted for PSICs, and the Combined Seniority List followed for promotion of officers of PSICs does not include the officers of AICIL. General Managers of PSICs have never been appointed to vacancies arising on the Board of AICIL, and vice versa.

AICIL is not governed by the provisions of GIBNA, 1972 and as a consequence thereto respondent no. 1 has no power to transfer any officer of PSICs to AICIL and vice versa. Despite being well aware of these anomalies, respondent nos.1, 2 and 13, included AICIL officers in the zone of consideration and even appointed one such officer, respondent no. 12, on the post in question, contrary to the standard procedure under law, without a Combined Seniority List being circulated.

21. Counter affidavit has been filed by respondent NO. 2/BBB wherein it is stated that the petitioner is estopped from challenging the selection process after duly participating in the same. It is the stand of respondent no. 2/BBB that the petitioner participated without protest or demur not only in the current selection process of May 2021, but also in the selection process conducted in August, 2020, and therefore it is not open to him to challenge the jurisdiction, competency or procedure followed therein.

22. It is further stated that the number of vacancies filled in the month of August 2020 were nine, whereas as per the Combined Seniority List of General Managers maintained by General Insurance Public Sector Association ("GIPSA", for short), as on April 01, 2020 the name of the petitioner reflected at

┌─────────────────────────────────────────────────────────────────────────────────────────┐
│     Serial          Name / Designation             Designation                          │
│    number                                                                               │
├─────────────────────────────────────────────────────────────────────────────────────────┤
│       1.      Part time Chairman                Chairman                                │
│       2.      Secretary,     Department    of   ex-officio Member                       │
│               Financial Services                                                        │
│       3.      Secretary, Department of Public   ex-officio Member                       │
│               Enterprises                                                               │
│       4.      Deputy Governor, Reserve Bank     ex-officio Member                       │
│               of India                                                                  │
│       5.      Part time Member                  Member                                  │
│       6.      Part time Member                  Member                                  │
│       7.      Part time Member                  Member                                  │
│ W.P.(C) 5635/2021                                          Page 50 of 74                │
│                                                                         2021:DHC:3164   │
└─────────────────────────────────────────────────────────────────────────────────────────┘

62. It is stated that the Chairman, IRDA, who is a compulsory member of the BBB under the impugned Communication dated December 13, 2018, was not a part of the Interview Board of May, 2021 as the said position was vacant. In the absence of the Chairman, IRDA, the Chairman of BBB is required to be a part of the Interview Board as per the office order dated June 18,

2020. However, the Chairman of the BBB was also not on the Interview Board.

63. It is the submission of Mr. Chandra that the Board for the impugned selection consisted of Mr. G.N. Bajpai and Mr. Mathew Verghese, who were disqualified in terms of Point 2(ix) of the impugned Circular dated November 06, 2019 on the ground of conflict of interest, as the former is a Chairman of the Board of Future Generali Insurance Co Ltd, a private general insurer of Kishore Biyani Group and the latter works with an insurance broker firm Bharat Re and also serves as an advisor of non-life insurance Shriram Group and is appointed as Independent Director on the board of Shriram General Insurance Company.

64. It is also contended that vacancies were changed mid-way through the impugned selection process of May 2021. It is also submitted that the „Behavioural Assessment Round‟, mandatory under Point 2(vi) of impugned Circular dated November 06, 2019 and undertaken to assist in the interview process in August 2020, was arbitrarily skipped in May 2021. According to Mr. Chandra, 15% of the total marks towards „overall personality‟ which was to be assessed during this round, was left to the unbridled discretion of the Interview Panel.

65. Mr. Chandra submitted that the respondents erred in publishing the reserve list of candidates which is to be kept in a sealed envelope, thereby irreparably compromising the transparency and fairness of the selection process.

66. That apart, it is submitted that the question of estoppel does not arise as there is patent material unconstitutionality and illegality in the impugned selections undertaken by respondent no. 2 de hors the Law. To fortify this argument, reliance has been placed on the Judgments of the Supreme Court in Dr. (Major) Meeta Sahai v. State of Bihar and Ors., (2019) 20 SCC 17; Raj Kumar v. Shakti Raj (1997) 9 SCC 527 and Mriganka Mondel v. Dr. Asitabha Das (2018) SCC OnLine Cal 16646.

67. It is submitted by Mr. Gopal Jain, learned Sr. Counsel appearing on behalf of respondent no.2/BBB that the petitioner is estopped from challenging the selection process after participating in it not once, but twice. Reliance in this regard is placed on the judgments of the Supreme Court in Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576, Ramesh Chandra Shah and Ors. v. Anil Joshi and Ors. (2013) 11 SCC 309, Madras Institute of Development Studies and others v. K. Sivasubramaniyan and Ors., (2016) 1 SCC 454 and K.H. Siraj v. High Court of Kerala and Ors., (2006)6 SCC 395.

68. Mr. Jain denied the allegation that the selection process is conducted in an arbitrary or illegal manner while excluding the most meritorious candidate. He submitted that the selection was made on the basis of merit inasmuch as weightage in the ratio of 50:50 is awarded for interview and ACR scores for the last five years (maximum 10 marks for each year) in the selection process. And furthermore, weightage is assigned as per various parameters during the interview i.e., 35% to Technical Knowledge, 20% to Managerial Capabilities, 15% to Diversity of Experience, 15% to General & Economic Awareness and 15% to Overall Personality. The petitioner was provided equal opportunity along with other candidates and after strictly following the aforesaid selection process and guidelines, a common merit list was prepared by the BBB and recommendations were made. It is also stated that the BBB is not the appointing authority and it only conducts the selection process and make recommendations to the Government. It is the Government who appointment Directors in PSICs as per the Memorandum and Articles of Association of the respective companies.

69. He further stated that it is a well settled principle of service jurisprudence that where merit is the criteria for the selection amongst the members of the service, no officer has legal right to be selected for promotion, except that he has only a right to be considered along with others and a selection of junior in service in preference to his senior does not amount to supersession. Reliance in this regard is placed on R.S. Dass and others v. Union of India and others, 1986 Supp (1) SCC 617.

70. It is also contended by Mr. Jain that the impugned recommendations are mere recommendations and the appointment is to be done by the Government and that the petition challenging the recommendation of shortlisted candidates is not maintainable. In this regard, reliance is placed on judgments of the Supreme Court in Geomin Minerals and Marketing Pvt. Ltd. v. State of Orissa and Ors. (2013) 7 SCC 571, G. Sarana v. University of Lucknow and Ors., (1976) 3 SCC 585, judgment of the Division Bench of the High Court of Calcutta in Utpal Kumar Chowdhury v. Pranab Kumar Dhar (1995) ILR 1Cal. 176 and Sadhan Kumar Bose v.. Anirudha Mukherjee, (1993) 4 SLR 473.

71. It is submitted by Mr. Jain that Mr. Chandra has contended that procedure of the selection followed by the respondents in August 2020 and May 2021 were not uniform and the candidates were required to undergo a “Behavioural Assessment Round” conducted by a talent management consultancy firm in the process conducted in August 2020, whereas no such procedure was resorted to in May 2021. In this regard, it is submitted that it is well settled proposition of law that the Authority which is making selection is fully entitled to evolve its own procedure for selection. Furthermore, the Behavioural Assessment Round by talent management firm is not a mandatory procedure as per the prevailing guidelines and it was the procedure adopted by the BBB for assisting the interview process. The findings of Behavioural Assessment are not a part of the overall score and do not have any weightage. He has referred to the Judgment of the Division Bench of this Court in Rakesh Kumar v. The Chairman, Staff Selection Commission and Ors., 2010 (3) SLR 758.

72. He submitted that the selection process by the selection committee was conducted on the basis of guidelines / circular and procedure laid down by the Competent Authority i.e., the ACC and this Court cannot be called upon to sit in appeal while considering the proceedings of the selection committee and the scope to interfere is limited where either the selection is actuated with malafide or statutory provisions have not been followed. It is stated by Mr. Jain that the petitioner herein has failed to demonstrate any malafide upon the selection committee and he has also failed to showcase any violation of any statutory provisions. Furthermore, the petitioner himself relies upon the Executive Order of the respondent no. 1 to contend that he is entitled to be appointed as General Manager and Director in terms of seniority. The appointment of Directors in PSICs is the prerogative of the Central Government and it is the sole discretion of the Government to make appointments. The post of Director is not in the staff hierarchy of the companies. In this regard, reference has been made to M.V. Thimmaiah and Ors. v. Union Public Service Commission and Ors., (2008) 2 SCC 119.

73. Mr. Jain further submitted that the contention of the petitioner that a Scheme for making appointments to the post of General Manager and Director ought to have been promulgated under Section 17A of the GIBNA, 1972 is misplaced. He submitted that under Section 16(1)(g) of the GIBNA, 1972, the Central Government can frame one or more Schemes providing for rationalisation or revision of pay scales and other terms and conditions of service of officers and other employees of the insurance companies, whereas as per Section 17A (inserted by way of amendment in the year 1985) a Scheme can be framed for regulating the terms and conditions of services of officers and other employees. While exercising the powers under Section 16, the Central Government has framed a General Insurance (Rationalisation of pay scales and other conditions of service of officers) Scheme 1975, which has been subsequently amended under Section 17A to amend the matters related to pay scales, increments and allowances of officers and staff of PSICs. The said Scheme of 1975 as well as Section 17A and Section 16 of the GIBNA, 1972, are applicable only to officers and other employees and not Directors.

74. As regards the allegation of the petitioner that his ACR of last five years upto 2020-21 was not taken into consideration, it is submitted by Mr. Jain that ACR of previous five years upto 2019- 20 were considered uniformly for all the candidates and the same has been given 50% weightage in the scores as per the rules and procedure. Furthermore, the ACR for 2020-21 of the petitioner was not even prepared at the time of selection process and the same was approved only on July 07, 2021 which is much later after the recommendations were made.

75. It is submitted by Mr. Jain that the BBB has conducted the selection and recommended candidates for appointment as Director of PSICs in the past also. Already nineteen such candidates were appointed and there was no challenge to the process or to the authority of the Board to conduct the selection. The petitioner has decided to challenge the process only after participating in the selection twice and failing. He further stated that the appointment of Director of PSICs is not by way of promotion and even when a General Manager is appointed as Director, he continues to get the salary and perks of a General Manager only. This, according to Mr. Jain, is the reason the designation is General Manager and Director. PSICs being Government Companies, appointment to the post of Director is the prerogative of the Government. No one has any right of appointment as Director due to his seniority or otherwise. He further contended that even the order dated February 16, 2012 relied upon by the petitioner which talks about seniority as the criteria is a procedure followed by the Government and can be changed by the Government by issuing another order. The Government has done that by issuing the circulars dated December 13, 2018, November 06, 2019 and June 09, 2020. It was done in the best interest of the public sector companies. It is submitted by Mr. Jain that such action taken by the Government in good faith and in public interest cannot be unsettled at the behest of a person who attempted to take benefit of the selection and failed.

76. That apart, it is submitted that the argument of the petitioner that there is a conflict of interest between members of the board is baseless and deserves no consideration. When the members of the Board have to be constituted with experts from the insurance sector, they will obviously be persons who held high posts in insurance companies or are still in the advisory positions. Conflict will arise only if there is conflict of interest in the subject matter of selection. In this case, none of the members have any conflict of interest with the impugned selection. Mr. Jain has relied upon the Judgment of the Supreme Court in G. Sarana (supra).

77. Further Mr. Chetan Sharma, Ld. ASG appearing on behalf of respondent no. 1 stated that the Circulars dated December 13, 2018, November 06, 2019 and June 09, 2020 are not in violation of any law, as the ACC has been assigned the function, inter alia, to take decisions in respect of appointments specified in Annexure I to the First Schedule of the Transaction of Business Rules and therefore the appointments in PSICs require the approval of the ACC.

78. It is stated by Mr. Sharma that the Notification dated December 29, 1972 categorically specifies the exceptions, restrictions, limitations in Column (2) thereof as a result of which the provisions of Section 34A of the Insurance Act, 1938 requiring prior approval of IRDA for appointment of Directors on the Board has been made "not applicable" for companies covered under the GIBNA, 1972, including both the General Insurance Corporation and other acquiring companies.

79. It is further submitted that Section 24A of GIBNA, 1972, which was subsequently inserted through amendment effected by the Third Schedule to the IRDA Act, 1999, provides that the exclusive privilege of the Corporation and the acquiring companies of carrying on general insurance business in India shall cease on from the commencement of the IRDA Act, 1999 and the Corporation and the acquiring companies shall, thereafter, carry on general insurance business in accordance with the provisions of the Insurance Act, 1938. Insofar as the applicability of the IRDA Act, 1999 on the insurance companies governed under GIBNA, 1972 is concerned, it is submitted that the same shall be applicable only to the extent of mode of carrying out the general insurance business in India and has no relation whatsoever with the appointment of the Managing Director/ Whole-Time Director of PSICs.

80. It is submitted that the power/jurisdiction to appoint a Managing Director/ Whole Time Director of PSICs has always been vested with the ACC under Transaction of Business Rules and when the IRDA Act, 1999 came into force, Section 35 of the GIBNA, 1972 and the exemption notification dated December 29, 1972 were not rescinded and are still in force.

81. It is also submitted by Mr. Sharma that if the intent of Section 24A inserted under the Third Schedule of the IRDA Act, 1999 in amending GIBNA, 1972 had been to provide for the provisions of the Insurance Act to apply without any exceptions, the said enactment would have omitted Section 35 of the GIBNA, 1972 as well. Therefore, given that Section 35 has remained on the statute book despite the insertion of Section 24A, there is need to read provisions of both the sections harmoniously, which logically leads to the conclusion that the reference to the provisions of the Insurance Act, 1938 in relation to the said insurers, should be construed as a reference to the Insurance Act, 1938 as applicable to them after taking into account any exceptions etc. (including the one in respect of section 34A of Insurance Act) as notified under Section 35. He further stated that the subject matter domain of Section 24A of GIBNA, 1972 is the carrying out of general insurance business in India. Even if one were to take the view that the provisions of the Insurance Act, 1938 shall apply notwithstanding any exceptions notified under Section 35 of the GIBNA, 1972, the language of Section 24A of GIBNA, 1972 expressly provides for applicability of Insurance Act, 1938 provisions only in relation to the carrying on of general insurance business in India.

82. It is the submission of Mr. Sharma that Section 118 (c) of the Insurance Act, 1938 on Exemptions provides that nothing in the Insurance Act, 1938 shall apply if the Central Government so orders in any case, modifications as may be specified in the order to any insurance business carried on by a Government Company. The impugned Orders were issued by the ACC exercising the powers conferred under the Transaction of Business Rules. It is submitted that therefore, the impugned Circulars issued by the ACC constitutes as an Orders in terms of Section 118 (c) of the Insurance Act, 1938.

83. Reference is made to the Index of the Insurance Act, 1938, wherein Chapter II contains „Provisions Applicable to Insurers‟. Provisions specific to carrying out the business by Insurance Companies are categorised under different sub headings therein. It is contended by Mr. Sharma that since Section 34A does not feature in any of these specific sub headings, it is not applicable to companies covered under the GIBNA, 1972 and therefore appointments to these companies shall only be governed by the ACC under the Transaction of Business Rules.

84. It is submitted that the BBB was created vide the Office Order dated August 24, 2015 issued by the ACC based on the proposal of the DFS. It is also stated that Banking Schemes made under Section 9 of the Act of 1980 only requires consultation with the RBI, and not approval of the RBI. Furthermore, Mr. Sharma states that sub section (6) of Section 9 requires only post facto laying of a Scheme in Parliament and therefore it is incorrect that the Scheme was notified subsequent to the approval of the Parliament. It is further submitted that since the origin/ creation/ establishment of BBB is by way of the Office Order dated August 24, 2015 issued by the ACC, any change or modification in the mandate of the BBB could have been carried out only by way of a subsequent Office Order / Circulars of ACC, which in the present case has rightly been issued by the ACC vide the impugned Circulars.

85. Mr. Sharma has reiterated the contention of respondent no.2/BBB that having participated in the 2020 Selection Process and 2021 Selection Process without protest or demur, the petitioner is estopped from challenging the same. Reliance in this regard is placed on the Supreme Court Judgments in Manish Kumar Shahi vs. State of Bihar and others (supra) and Ramesh Chandra Shah and Ors. v. Anil Joshi and Ors., (supra).

86. It is also stated that the BBB consists of specialised experts from the insurance sector for the purpose of carrying out selection for posts of Whole-Time Directors of PSICs.

87. That apart, it is stated that upon enactment of the GIBNA, 1972, certain powers have been vested upon the Central Government under Section 16 (l)(e) read with Section 16 (7) of the said Act, wherein the Articles of Association or the Memorandum of Association can be altered for the companies covered under the purview of the Act. Pursuant to the said provision, the Articles of Association of NICL and OICL have been amended to state that the Whole Time Chairman-cum- Managing Director shall be appointed by the Central

88. It is submitted that Department of Personnel and Training issued a Notification dated December 20, 2007, which provides for the criteria of Selection of the Chairman-cum- Managing Directors. The said notification was issued prior to the notification dated February 16, 2012 and the selection criteria include weightage to the experience, performance of the officer during the service and the interview. Thus, seniority alone was not the criteria of selection for a Whole-Time Director of PSICs.

89. It is submitted that later, General Manager and Directors were also included in the list of Whole-Time Directors as the General Manager and Directors also have statutory and legal obligations to fulfil as per the Companies Act, 2013 and SEBI Rules. Therefore, it was decided with the approval of the Finance Minister to appoint General Manager and Directors also with the approval of ACC.

90. Mr. Sharma disputes the contention of the petitioner that that the selection process of a Whole-Time Director can only be done on the basis of seniority. It is submitted that the Circular dated December 13, 2018 was issued by the ACC under Article 77(3) of the Constitution of India and it automatically supersedes the order dated February 16, 2012, which is merely an Executive Order.

91. Mr. Varun Agarwal, learned counsel appearing for respondent Nos. 3 to 7 and 9 to 12, stated that he concurs with the extensive submissions made by the counsels for respondent nos. 1 and 2.

92. That apart, he submitted that the respondent no. 3 GIPSA provides a forum for facilitating consultations and deliberations amongst PSICs on matters of common interest. He further stated that the appropriate government is fully empowered to frame the rules of selection for the posts intended to be filled by it in PSICs. The entire selection process has been carried out in an open and fair manner and the modus/stages of selection were informed in advance to all participants concerned. He also stated that respondent Nos. 4 to 8 are the General Managers of PSICs who have been selected by BBB for the post of General Manager and Director on May 11, 2021 (second impugned selection). He further submitted that respondent Nos. 9 to 12 were selected by BBB for the post of GM and Director on October 8, 2020. Out of these respondent No.9 Anjan Dey did not join the post of General Manager and Director as he was later on also selected for the post of Chairman–cum-Managing Director of OICL. Further respondent No.2 has already been superannuated from the post of General Manager and Director. In the end, he stated that BBB has carried out the selection process for the appointments of Whole Time Directors of PSICs as empowered to do so by the appropriate Government and the respondents have bonafidely participated in the selection process. The selection made is justified. CONCLUSION:

93. Having heard the learned Counsel for the parties and perused the record, so also the written submissions filed by them, before I deal with their rival submissions, it shall be appropriate to cull out, in brief the facts as highlighted by the counsel for the parties.

94. In 2018, petitioner was working as General Manager in National Insurance Corporation Limited (NICL). As a General Manager he is eligible for appointment to the post of General Manager and Director in PSICs. Between November, 2018 to July, 2020, nine vacancies arose on the Board of Directors in different PSICs. The first impugned selection was held in the month of August, 2020.

95. It is the case of the petitioner, despite being eligible and meritorious and ranked 13 in the overall seniority, he was superseded by persons junior to him.

96. A second impugned selection took place in the month of May, 2021 for filling five vacancies, when the petitioner was kept in the reserved list. Previous to the impugned selections, the mode of selection, as per Mr. Chandra was by seniority by the Committee of the CMDs of PSICs, which makes recommendation to the Central Government, who issues the requisite transfer orders in exercise of its authority under Section 22 of the GIBNA, 1972.

97. The plea of Mr. Chandra is primarily that the consideration / selection undertaken by BBB, a body constituted solely for banking sector with overall control of Reserve Bank of India has no jurisdiction or control over PSICs. In other words, BBB could not have undertaken the selection of General Manager and Directors in PSICs. To understand this submission, it is necessary to understand the constitution of BBB.

98. Vide order dated August 24, 2015, the ACC approved the proposal of DFS for creation of BBB, which stipulated structure / composition / functions / management and methodology for selection / tenure of members of BBB. The functions of BBB primarily are with regard to selection and appointment of Board of Directors in Public Sector Banks and Financial Institutions. It appears that upon consultation with the Reserve Bank of India, a Gazette Notification dated March 23, 2016 was issued by respondent No.1 DFS. In terms of this notification, the scheme called ―Nationalised Banks (Management and Miscellaneous Provisions) Amendment Scheme, 2016‖ amending the ―Nationalised Banks (Management and Miscellaneous Provisions) Scheme, 1980‖ framed under Section 9 of the Act of 1980 was notified, whereby in Clause (2) after sub-clause (b), sub-clause (ba) was inserted defining “Bureau” to mean Banks Board Bureau (BBB). Further Clause 7(A) was inserted with regard to establishing Banks Board Bureau (BBB) in the scheme of 1980, so also stipulating the Board of Directors of the Bureau consisting one Chairman and six members as mentioned below: - Serial number Name / Designation Designation

1. Part time Chairman Chairman

2. Secretary, Department of Financial Services ex-officio Member

3. Secretary, Department of Public Enterprises

4. Deputy Governor, Reserve Bank of India

5. Part time Member Member

6. Part time Member Member

7. Part time Member Member

99. Clause 7(B) was also inserted which refers to the manner of appointment of Whole-Time Directors and Chairman of BBB and creation of Bureau. Clause 7(C) was also inserted, which details the functions of the Bureau in the following manner: (a) to recommend the selection and appointment of Board of Directors in Nationalised Banks (Whole Time Directors and Chairman); (b) to advise the Central Government on matters relating to appointments, confirmation or extension of tenure and termination of services of the Directors of nationalised banks;

(c) to advise the Central Government on the desired management structure of nationalised banks, at the level of Board of Directors and senior management;

(d) to advise the Central Government on a suitable performance appraisal system for nationalised banks; (e) to build a data bank containing data relating to the performance of nationalised banks and its officers; (f) to advise the Central Government on the formulation and enforcement of a code of conduct and ethics for managerial personnel in nationalised banks; (g) to advise the Central Government on evolving suitable training and development programs for managerial personnel in nationalised banks. (h) to help the banks in terms of developing business strategies and capital raising plan and the like; and

(i) any other work assigned by the Government in consultation with Reserve Bank of India.

100. The case of the respondent No.1 as contended by Mr. Chetan Sharma is that the President of India in exercise of his powers under Article 77 (3) of the Constitution of India has made Transaction of Business Rules. In terms of First Schedule to the Rules, the ACC has been assigned the function, inter alia to take decision with respect to appointments specified in Annexure-A[1] to the First Schedule which includes appointment with respect to Chairman and other members of the Board of Management of PSICs and as such the ACC is competent to issue the circulars dated December 13, 2018 and June 9, 2020 approving the proposal of DFS to modify the guidelines dated August 24, 2015 to expand the mandate of BBB and also vide circular dated November 6, 2019 prescribing the changes in composition of the BBB; selection / tenure of the members of the BBB, selection methodology to be adopted by BBB etc. to include selection and appointment of Whole-Time Directors of PSICs. In fact, it is stated by Mr. Sharma, that BBB was created vide office order dated August 24, 2015 issued by the ACC based on the proposal of DFS and before the amendment of the Banking Scheme vide notification dated March 23, 2016, many compliances have been carried out through various documents. The plea is not appealing for the reason that BBB has been created only vide notification dated March 23, 2016 and not before, that too by amending the Scheme of 1980, though pursuant to the approval granted by the ACC to the proposal of DFS and in consultation with the RBI. The approval granted by the ACC vide order dated August 24, 2015 for creation of BBB has been achieved with the issuance of the notification dated March 23, 2016. The administrative order of ACC dated August 24, 2015 shall not have the effect of amending the Scheme of 1980 known to law. A further change or modification of functions of BBB for purposes other than appointments in the Banks, that is in PSICs cannot be affected as the BBB has its roots / origin in Section 9 of the Act of 1980 which empowers the Central Government to make the Scheme, after consultation with RBI, which includes for the constitution of the Board of Directors in the Banks and Financial Institutions only. In exercise of this power under Section 9, the Central Government has framed the Scheme of 1980 which includes detail provisions made in Chapter II with respect to constitution of the Board which includes the appointment of Chairman and Managing Director and whole-time Directors in banks by the Central Government in consultation with the RBI, which has no concern with the PSICs. The Act of 1980 / Scheme of 1980, is enactment / scheme relating to Banking Companies with no concern with Insurance Companies and the provisions thereunder cannot be invoked to govern the selection / appointment in the PSICs. In fact, there is no provision in the Act of 1980 / Scheme of 1980 to include the scheme / provision relating to appointments in PSICs.

101. So, it must be held that the impugned circulars by which ACC decided to modify the mandate of BBB to make appointments in the insurance companies; changing the composition of BBB for making appointments in PSICs, also laying down the eligibility conditions / criteria for selection etc. to be carried out through BBB shall be untenable and ultra vires the Act of 1980 / Scheme of 1980.

102. Mr. Chandra is justified to say that the Act of 1980 / Scheme of 1980 occupies the field of appointment to the Board of Directors of the Banks / Financial Institutions only and cannot include in its fold the appointments in PSICs. The issue can also be looked from another angle inasmuch as Transaction of Business Rules on which reliance has been placed by Mr. Sharma justifying the issuance of the impugned circulars by the ACC, have been framed under Article 77 (3) of the Constitution of India by the President of India and to that extent is in exercise of legislative power, but the provisions of the Transaction of Business Rules are administrative in nature for the governance of the business of the Government of India (Ref: Crawford Bayley & Co. and Ors. Union of India and Ors. 2006 6 SCC 25). If the Transaction of Business Rules are administrative in nature, the exercise of power by the ACC under the said rules to amend already existing statutory provisions / legislative scheme of 1980 is impermissible. Even under Section 9(6) of the Act of 1980, a Scheme framed becomes effective only after the same is placed before the Houses of Parliament and after Parliament agrees to the Scheme and made modifications. (Ref. New Bank of India Employees’ Union & Ors. (supra)). This exercise has not happened, nor could have happened, as the impugned circulars, could not have varied / amended the Scheme of 1980 to include the selection and appointment in PSICs being ultra vires. Mr. Chandra is also justified in relying upon K.P. Sudhakaran and Anr. (supra) wherein the Supreme Court held, where the statutory rules occupy the field, the executive instructions, cease to apply. Similarly, reliance placed by Mr. Chandra on the Judgment of Radhashyam Panigrahi (supra), of the Division Bench judgment of the Orissa High Court, wherein it was held that the executive instructions cannot override the statutory rules. In the said Judgment, reference is also made to a Constition Bench Judgment of the Supreme Court in the case of B.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942 wherein the Supreme Court has held as under: ―It is hardly necessary to mention that if there is a statutory rule or act on the matter, the executive must abide by that act or rule and it cannot in exercise of its executive powers under 162 of the Constitution ignore or act contrary to that rule or that Act‖

103. From the above, it is clear that the Scheme made under the Act of 1980 would only govern the appointments made to the Board of Management of the Banks / Financial Institutions and not the PSICs. In other words, BBB, the Statutory Authority must exercise the jurisdiction within the four corners of the Act of 1980 / Scheme of 1980.

104. That apart the issuance of circulars dated December 13, 2018, November 6, 2019 and June 9, 2020 has resulted in an anomalous position inasmuch as two different Board of Directors / composition have been created with regard to one body called BBB. This I say so in view of the Board of Directors of BBB stipulated in the notification dated March 23, 2016 and composition stipulated in the approval of ACC dated December 13, 2018, are at variance.

105. It is the conceded case of the parties that prior to the impugned selections, the appointment as General Manager / Directors was made in terms of the notification issued on December 20, 2007, with the approval of ACC. The circular states, the appointment of Chairman-cum-Managing Director is made by the Central Government under Memorandum and Articles of Association of respective Company. The relevant part of circular of 2007 reads as under: “ xxxx xxxx xxxx Appointments of Chairman-cum-Managing Director of GIC (Indian re-insurer), Oriental Insurance Company Ltd., National Insurance Company Ltd., New India Assurance Company Ltd., United India Insurance Company Ltd., and Agriculture Insurance Company of India Ltd. are made by the Central Government under the Memorandum and Articles of Association of the respective Company. xxxx xxxx xxxx‖ This circular is followed by circular dated February 16,

2012. The 2012 circular also indicate the appointment of the Whole-Time Directors in PSICs shall be from amongst the General Managers. Having said that it must also be stated that in view of Transaction of Business Rules, the competency of ACC to make / prescribe the eligibility conditions / criteria for selection / composition of the Selection Committee cannot be disputed. But prescribing mode / process of selection through BBB and composition of the Selection Committee in BBB cannot be sustained. Even otherwise, assuming that the proposal as mooted out by DFS as approved by the ACC on December 13, 2018 and November 6, 2019 with respect to Insurance Companies is valid, still they have not been notified in the Gazette as has been done on March 23, 2016 amending the scheme of 1980 incorporating clauses 7(A), 7(B) and 7(C). This I say so as the proposal approved by the ACC has the affect of amending clauses 7(A), 7(B) and 7(C) of the Scheme of 1980 as inserted vide the notification dated March 23, 2016. Mr. Chandra is justified in relying on the Judgment of the Supreme Court in the case of Shanti Sports Club and Anr. (supra) wherein in Para 37, the Supreme Court has held as under: ―37. In the light of the submissions made by the learned counsel for the parties, we shall now consider whether the note dated 8-6-1999 recorded by the then Minister for Urban Development can be treated as a decision of the Government to withdraw from the acquisition of land in question in terms of Section 48(1) of the Act, which lays down that: ―48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.—(1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.‖ Although, the plain language of Section 48(1) does not give any indication of the manner or mode in which the power/discretion to withdraw from the acquisition of any land is required to be exercised, having regard to the scheme of Parts II and VII of the 1894 Act, which postulates publication of notification under Section 4(1), declaration under Section 6 and agreement under Section 42 in the Official Gazette as a condition for valid acquisition of the land for any public purpose or for a company, it is reasonable to take the view that withdrawal from the acquisition, which may adversely affect the public purpose for which, or the company on whose behalf the acquisition is proposed, can be done only by issuing a notification in the Official Gazette.‖ (emphasis supplied)

106. In view of the above discussion, if the BBB could not have undertaken the process of selection of General Manager / Directors in PSICs, then the selection by BBB would not be in conformity with law. The process of selection to the post of General Manager / Directors of PSICs need to have been undertaken in terms of the provisions of the Memorandum and Articles of Association of each PSIC, through the circulars already issued or validly framed rules / guidelines relating to the criteria, composition of the Committee etc. It is settled law that an Authority approving / making appointment can evolve the procedure / criteria for selection, but only in accordance with law. The reliance placed by Mr. Jain on the Judgment of this Court in Rakesh Kumar (supra) wherein it is held that the authority which is making recruitment is fully competent to evolve its own procedure cannot be disputed but that is subject to competency of the authority and is not in violation of any law. As I have already held that ACC could not have evolved the process of selection and appointments through BBB, the Judgment is distinguishable. Hence, the stand of the respondent No.1 that BBB was competent to carry out selection and recommend the candidates for approval by ACC is unsustainable.

107. A plea was advanced by Mr. Jain and Mr. Sharma that the petitioner having participated in the 2020 and 2021 selection process conducted by BBB based on the Circulars issued by the ACC dated December 13, 2018, November 6, 2019 and June 9, 2020 without protest and demur and as he is not selected, he is estopped from challenging the process of selection including the jurisdiction and competency of BBB by relying on the Judgments in the case of Manish Kumar Shahi (supra); Ramesh Chandra Shah and Ors. (supra); Madras Institute of Development Studies and others (supra); K.H. Siraj (supra) is concerned, the same is unmerited, for the reason that the principle of estoppel / acquiescence would not come into play when the selection undertaken by the BBB is in violation / contrary to the statutory scheme of 1980 (including the amendments made vide notification dated March 23, 2016). In other words, there is no estoppel against law. The above argument of Mr. Jain was rightly opposed by Mr. Chandra by relying upon the Judgment in Raj Kumar (supra) in Para 16, where it is held as under: “16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 Notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K [(1995) 3 SCC 486: 1995 SCC (L&S) 712: (1995) 29 ATC 603] and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law.‖

108. Similarly, in the case of Dr. (Major) Meeta Sahai (supra), the Supreme Court has in Para 15 to 17 has held as under: “15. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for the respondents relied upon a catena of decisions of this Court to substantiate his objection.

16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar [Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576: (2011) 1 SCC (L&S) 256], observing as follows: (SCC p. 584, para 16) ―16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321: (2008) 4 PLJR 93] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.‖ [ See also: Madan Lal v. State of J&K, (1995) 3 SCC 486: 1995 SCC (L&S) 712, Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522: (2008) 1 SCC (L&S) 68, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171:

The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.

17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.

109. Similarly, in Mriganka Mondel (supra), the Calcutta High Court while referring to the Judgment of the Supreme Court in Raj Kumar (supra) has in Para 50 & 51 held as under: “50. In Raj Kumar (supra), the Supreme Court while dealing with the legality of a selection process that had been challenged by unsuccessful candidates had observed as follows: ―16. Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 Notification and the posts were taken out from the purview thereof. Thereafter the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in this case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law. (underlining for emphasis by us)

51. Reading the decisions in Dalpat Abasaheb Solunke (supra) and Raj Kumar (supra) does suggest that the process of selection can be challenged on the ground of illegality or patent material irregularity or mala fides vitiating the selection. This is also the conclusion we have reached above reading the decision in C.D. Govinda Rao (supra).‖

110. In a more recent Judgment, the Supreme Court in the case of Ramjit Singh Kardam and Ors. v. Sanjeev Kumar and Ors. 2020 SCCOnline SC 448 has in Paras 36 to 38 held as under: ―36. The preposition that a candidate, who participates in a selection without a demur taking a calculated chance to get selected cannot turn around and challenge the criteria of selection and the constitution of the selection committee is well settled. The appellants have placed reliance on judgment of this Court in Madan Lal v. State of J&K, (1995) 3 SCC 486; K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515; Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576; Madras Institute of Development Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454 and Ashok Kumar v. State of Bihar, (2017) 4 SCC 357.

37. In Madan Lal (supra), this Court laid down following in paragraph 9:— ―9. ……………………….It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.‖

38. The above preposition has been reiterated in other judgments of this Court noted above. In the present case, whether the respondents-writ petitioners are estopped from challenging the selection? While noticing the facts of the case, we have noted above that both appellants and the respondents had submitted applications in pursuance of advertisement dated 28.07.2006 No. 6/2006. In advertisement, it was provided that the Commission may shortlist the candidates for interview by holding a written examination or on the basis of a rational criteria to be adopted by the Commission. The Commission on 28.12.2006 published the criteria for calling the candidates for interview. Notice dated 28.12.2006 provided that written examination shall be held for post of PTI on 21.01.2007, on 100 objective type multiple choice questions, each question carrying two marks. The notification also prescribed the minimum qualifying marks- 50% for General category, SC BC and ESM 45% and 25% marks was assigned to the viva voce. The above criteria was implemented and written examination was conducted on 21.01.2007, which examination was cancelled citing complaints regarding malpractices in the written examination. Further notice dated 11.06.2008 was published fixing 20.07.2008 for written examination as per criteria earlier notified. Before the above examination could take place, by public notice dated 30.06.2008, it was cancelled. Another public notice dated 11.07.2008 was published where Commission decided to shortlist eight times the candidates of the advertised post with minimum weightage secured in each category. The said shortlisting was also given up by notice dated 31.07.2009 when it was decided to call all eligible candidates for interview. Commission did not publish any criteria or marks on the basis of which interview was to be held. The criteria, which was published by the Commission on 28.12.2006, 11.06.2008 and 11.07.2008 were given up step by step and no criteria was published for interview, which was scheduled to take place in from 2nd September to 17th October, 2008. When Commission had not published any criteria on the basis of which candidates were going to be subjected for selection process and the candidates participated in the selection without knowing the criteria of selection, they cannot be shut out from challenging the process of selection when ultimately they came to know that Commission step by step has diluted the merit in selection. When candidate is not aware of the criteria of selection under which he was subjected in the process and the said criteria for the first time is published along with final result dated 10.04.2010, he cannot be estopped from challenging the criteria of selection and the entire process of selection. Further when the written examination as notified earlier was scrapped and every eligible candidate was called for interview giving a go bye to a fair and reasonable process for shortlisting the candidates for interview, that too only by Chairman of the Commission whereas decision regarding criteria of selection has to be taken by Commission, the candidates have every right to challenge the entire selection process so conducted. This Court in Raj Kumar v. Shakti Raj, (1997) 9 SCC 527 held that when glaring illegalities have been committed in the procedure to get the candidates for examination, the principle of estoppel by conduct or acquiescence has no application. Referring to judgment of this Court's judgment in Madan Lal (supra), this Court laid down following in paragraph 16:— ―16. …………………………………The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J&K, (1995) 3 SCC 486 and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case. Thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action taken by the Government are not correct in law.‖

111. Mr. Jain and Mr. Sharma have in support of their submissions on estoppel and acquiescence relied upon the Judgments in the cases of Manish Kumar Shahi (supra), Ramesh Chandra Shah (supra), Madras Institute of Development Studies and others (supra) and K.H. Siraj (supra). The same will have no applicability in the facts of this case and as such are distinguishable. In fact, the judgments referred by Mr. Jain and Mr. Sharma have been considered by the Supreme Court in Ramjit Singh Kardam (supra), except K.H. Siraj (supra), which was considered by the Supreme Court in the case of M.V. Thimmaiah (supra) of which a reference has been made by Mr. Jain, which Judgments are also distinguishable on facts.

112. Hence, it must be held that the process of selection can be challenged if the same is contrary to statutory / legislative scheme making the said process, patently illegal. Hence, this plea of Mr. Jain is liable to be rejected.

113. Insofar as the submission of Mr. Chandra that ACC was never been involved in the appointment of Director of PSICs and neither its consent nor approval was sought until the appointments in August, 2020 is a new case set up by the petitioner in the written submissions. No such case has been set up in the writ petition. There was no opportunity for the respondent No.1 to deal with such a stand. In any case, the submission of Mr. Chandra is contrary to the very document relied upon by the petitioner (Annexure P-7) which is a circular dated February 16, 2012, Para 2 (II) thereof, clearly stipulates the Committee of CMDs making recommendation for appointment of Whole-Time Directors to the Government as per the existing practice and procedure. So the plea of Mr. Chandra that appointments were made as provided under the Articles of Association and circular dated February 16, 2012 with prior approval of IRDA cannot be accepted. His connected plea is that vide Sections 34A to 34H of the Insurance Act, 1938, the control over the PSICs is vested in IRDA and it is the IRDA (and not ACC) which is the final authority for appointment of Directors in PSICs and there cannot be any amendment of provisions relating to such appointment without the IRDA‟s approval. He also stated, Section 34D of the Insurance Act, 1938 gives overriding effect to Sections 34B and 34C over the other laws. The plea is unmerited. Mr. Sharma is right in stating that in terms of notification dated December 29, 1972, the Sections 34A to 34H of the Insurance Act, 1938, are not made applicable to PSICs. I reproduce the notification dated December 29, 1972 as under: ―S.O. 771(B) – In exercise of the powers conferred by Sections 35 of the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972), the Central Government hereby specifies the exceptions, restrictions and limitations specified in column (2) of the Table below subject to which the Insurance Act, 1938 (of 1938) shall apply to or in relation to the General Insurance Corporation of India formed under Section 9 of the first mentioned Act and to every acquiring company as defined under the said Act: - TABLE Sections of Insurance Act Exceptions, restrictions and limitations.