Prof. (Dr.) Jagadish Dutta Baruah vs Indian Council Of Medical ...
1998 Latest Caselaw 738 Del

JUDGMENT

Vijender Jain, J.

1. The petitioner has challenged the selection and appointment of respondent No.4 to the post of Senior Deputy Director General (NCD) in the Indian Council of Medical Research ( in short 'ICMR' ). Petitioner is a Professor and Head, Department of Radio Therapy, Locknayak Jai Prakash Narain Hospital, New Delhi. Respondent issued an advertisement on 1.8.1995 inviting applications from eligible candidates to the post of Senior Deputy Director General (NCD). It was, inter alia, stated in the said advertisement that the candidates will be called for personal discussion and applications received after closing date will not be considered.

2. It is the case of the petitioner that he applied through proper channel. Petitioner also made it known that he was nominated by the Ministry of Health and Family Welfare, Government of India to the WHO Fellowship-1995 and he informed the respondent that personal discussion/interview may be held during the period when he was in India as he was to go on WHO Fellowship. On 27.12.1995 personal discussions were held with the petitioner by the Selection Committee. However, the Selection Committee on 27.12.1995 decided to call for more applications. Although, the applicants, who applied for the personal discussion/interview for 27.7.1996, were less than those who were interviewed on 27.12.1995, yet, the Selection Committee fixed the date for interview on 27.7.1996. At the relevant time, the petitioner was in U.S.A.

3. Mr.Ashok Grover, learned counsel for the petitioner, has contended that although one of the colleagues of the petitioner on receipt of communication that the interview was fixed for 27.7.1996 had informed about the petitioner being out of India and the petitioner also addressed a communication that he was in U.S.A. and he could only reach India in August'1996, therefore, respondent ought to have postponed the interview as no personal discussion/interview could have been held with the petitioner and the petitioner was considered in absentia by the second Selection Committee and that action of the respondent in considering the petitioner in absentia was illegal and mala fide. It is in this background that the petitioner has challenged the selection and appointment of respondent No.4 on the basis of the second Selection process.

4. Mr.Grover has further contended that when respondent No.1 has chosen to follow the selection by advertisement, there was no justification for the respondent to select and appoint respondent No.4. without re-advertising the post in question in the newspapers as was done at the time of issuance of first advertisement. He has further contended that inviting applications from eminent persons/institutions without issuing a fresh advertisement for filling up the post of public nature was uncalled for, unwarranted and was against the principles of natural justice. Learned counsel for the petitioner has also contended that having followed the rule of open competition by issuing advertisement, respondent ought to have ensured wide publicity before calling the persons for interview for the second time. He has contended that requirement to advertise was to notify all eligible candidates, who intended to apply for the post. Learned counsel has contended that inviting applications from private sources was in order to subvert the basic objective of ensuring equality of opportunity in the matter of employment to public post. In support of his contentions, he has cited Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Vishweshwara Rao and Ors.

"Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Bolter view appears to be that it should be mandatory for the requisitioning authority/ establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the case of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."

5. Learned counsel for the petitioner has also relied upon the case of Konch Degree College, Conch Jalaun and Ors. v. Ram Sajiwan Shukla and Anr. , in which it is held by the Apex Court / -

"........As a consequence, he was reinstated and he has been continuing in service. It is true, as rightly pointed out by the High Court, that the advertisement required to be made with a view to inform all the candidates who wish to apply for and seek selection to the post to which the candidate is qualified to apply for and seek selection."

"............It is mandatory on the part of the Management to ensure that due publicity should be made in the newspapers to put on notice all intending candidates for selection, the infraction would necessarily be considered mandatory in the light of the object the Act seeks to achieve. The Management should be insisted upon compliance of the rigour of the rule. They cannot take shelter that all had applied for selection. But since the respondent has been continuing, was duly qualified and selected and as per the orders of this Court, he was reinstated, we do not, at this distance of time, incline to interfere with the appointment, though the statutory compliance was not made by the appellant-Committee, to invalidate the appointment."

6. On the basis of the aforesaid ruling of the Apex Court, Mr.Grover has contended that non-publicity in the newspapers for the second time when the Selection Committee interviewed and selected respondent No.4, has vitiated the selection and appointment of respondent No.4. He has contended that appointment of respondent No.4 was against the principles of natural justice ensuring equality of opportunity in the matter of employment to public post. He has further contended that the personal discussion/interview, which was a sine qua non for appointment in terms of public advertisement, was intended to test candidates' alertness, intelligence and intellectual outlook and consideration of the petitioner in absentia by the second Selection Committee is not permissible under law.

7. Next argument of the learned counsel for the petitioner was that second Selection Committee which met on 27.7.1996 was quite different from the one which had met initially on 27.12.1995 and interviewed the petitioner. As a matter of fact, latter Selection Committee had no occasion to meet the petitioner and, therefore, the second Selection Committee could not have considered the petitioner in absentia. Mr.Grover has further con tended that the respondent was to make the appointment in terms of the advertisement and in his support, has cited Dr. P. K.Jaiswal v. Ms. Debi Mukherjee and Ors. , in which Supreme Court held | -

"...........The right to selection crystallizes only after the candidate is called for interview pursuant to the advertisement. But in the instant case the question is whether the government can withdraw the requisition sent to the Commission for initiating the process of selection because at that point of tome no right had crystalised in anyone for being considered for seleclion. If the government is at a given point of time considering the question of amending the recruitment rules with a view to providing for promotion to the post in question, the government can before an advertisement is issued by the Commission and the process of selection is under way request the Commission to withdraw the same till it decides on the question of amending the rules..............."

8. Learned counsel for the petitioner has also contended that keeping in view the aforesaid circumstances, the manner and method in which the appointment has been made by the respondent of respondent No.4, shows the malafides of the respondents who are all out to appoint respondent No.4.

9. On the other hand, learned counsel for the respondents, Mr.A K Sikri, has contended that respondent No.1-ICMR is not a State or instrumentality or agency of State within the meaning of Article 12 of the Constitution of India and, therefore, petition under Article 226 of Constitution of India is not maintainable. In support of his contention, he has relied upon Subhajit Tiwari v.UOI , C M Khanna v. NCERT and a recent judgment of Allahabad High Court in Shri H V Aggarwal v. ICMR. Mr. Sikri has contended that interview which was held for the second time on 27.7.1996 could not be postponed on the request of one of the candidates and if the petitioner was not able to attend the interview that itself was not a ground to postpone the interview. He contended that if this kind of request is acceded to then it would be very difficult for the Selection Committee to hold any interview at any time because one or the other candidate may keep making such kind of request.

10. It has been contended by the learned counsel for the respondent that respondent could have ignored the candidature of the petitioner, however, petitioner's case was still considered in absentia by the second Selection Committee. Mr.Sikri has further contended that the Selection Committee in its wisdom decided to call for more applications and it was for this purpose that it was decided to invite nominations from Senior Medical Scientists apart from members of Scientific Advisory Board as well as the Governing Body of respondent-ICMR. He has contended that second Selection Committee's decision to call for fresh nominations was bona fide to widen the zone of consideration and, as a matter of fact, it cannot be termed as re-advertisement. Learned counsel for the respondents has further contended that there was no force in the argument of the petitioner that there was any mala fide in the appointment of respondent No.4. He has emphatically denied the allegation of the petitioner that petitioner was placed at No.1 on the panel prepared by the first Selection Committee, the stand of the respondent was that no such panel was prepared by the respondent on the basis of his interview held on 27.12.1995. In the alternative, Mr.Sikri has contended that even if it was considered as re-advertisement, the petitioner was not prejudiced in any manner as the petitioner was considered in absentia and in support of his contention has cited the case of Shri A K Bansal v. MCD and Ors. .

11. Mr.Sikri has further contended that if the respondents were acting in a mala fide manner then the respondents could have appointed respondent No.4 even on the basis of the interview held on 27.12.1995.

12. Explaining the change in the members of the second Selection Committee, Mr.Sikri admitted that some of the members of the Selection Committee, which was constituted earlier and met on 27.12.1995, were not available when the scheduled interview for 27.7.1996 was to take place, members of the Selection Committee were changed and in their place other members were nominated. Mr,Sikri contended that on the basis of the first interview no candidate had come to the expected level and, therefore, Selection Committee was justified in deferring the selection and call for fresh selection. In this connection, he has relied upon M. Papanna v.Hon'ble Chief Justice 1989 (2) SLR 507, Nalini Mulajkar & Govind Kathikar v. The Registrar, Osmania, University Hyderabad and Ors. 1989 (2) SLR 671 and 1969 SLR 278 and on the basis of the aforesaid precedents, learned counsel for the respondent has contended that there was no merit in the petition and the same deserved to be dismissed.

13. Dr.A M Singhvi, learned counsel appearing for respondent No.4, has contended that the petitioner had no right to challenge the appointment of respondent No.4 as the petitioner did not make himself available for interview on 27.7.1996 and no communication from the side of the petitioner was received by the respondent. He has further contended that respondent No.4 is now serving as Senior Deputy Director General and the High Court while exercising its writ jurisdiction will not set aside the appointment of the respondent No.4 as her appointment is on account of no fault of hers. He has further contended that quashing of her appointment would result in greater harm to the respondent No.4 and in such an eventuality the Court may restrain itself from exercising the power and in support of his contentions, has cited State of Maharashtra and Ors. v. Prabhu .

14. I have heard the learned counsel for the parties at length. Let me first deal with the argument of the respondents that the respondents are not amenable to Article 12 of the Constitution of India. A Division Bench of the Calcutta High Court in Director General, Indian Council of Medical Research & Ors.Vs.DrAnil Kumar Ghosh in an appeal decided on 19.2.1991 held | -

"After looking to the constitution of the Governing Body of the Indian Council of Medical Research, the way in which it is financed almost entirely by the Government, the governmental control over its expenditure are to be audited by the office of the Comptroller and Auditor General of India and the overall control which the Central Government exercises and can exercise in respect of the Council, and also the nature and quality of the function discharged by the Council which are of public nature, we have no manner of doubt that this Council is an authority within the meaning of the expression "other authorities" in Article 12 of the Constitution. The decisions of the Supreme Court on this point are almost numberless and we may, by the way, refer to the decision in M.C. Mehta , where almost all the important earlier decisions on this point have been considered by the Supreme Court. The learned trial Judge has also, for reasons noted by him in his judgment under appeal, come to the same conclusion. Agreeing with the finding of the learned trial Judge, we accordingly hold that the Indian Council of Medical Research is an instrumentality or agency of the State and therefore a writ against the Council is perfectly maintainable. Our attention has been drawn to an un-reported decision of a Division Bench of this Court in Secretary, Ministry of Health v. J. Sharma Sarkar, where the Division Bench has held this Council not to be an instrumentality of agency of the Government. We should note that this judgment was rendered by the Division Bench on 10.8.1989 and we are afraid that in view of the later decisions of our Supreme Court as noted in M.C.Mehta (supra), the view of the Division Bench can no longer be regarded to be good law."

15. I have perused the Memorandum of Association, Bye-laws, Rules and Regulations of the respondent No.1-ICMR. In view of the Memorandum of Association, Bye-laws governing the condition of service of the employees of the respondent No.1-ICMR, the extent of functions and control as well as the constitution of the society leaves no doubt that the respondent-ICMR is an instrumentality of State. In the rules and regulations of respondent No.1-ICMR, it has been mentioned that the Health Minister, Government of India shall be President of the Council, the Secretary of Ministry of Health and Family Welfare, Government of India shall be the Vice-President. Rule-4 provides that the Governing Body with the approval of the Central Government shall appoint the Director General of the Council who shall be the Chief Executive of the Council. Even the constitution of Governing Body, as per Rule-15, amply demonstrate that the majority of the members are Government servants. Rule-40 of the Rules provides that the accounts of the Indian Council of Medical Research shall be maintained by the Director General and audited by the Comptroller and Auditor General of India. Rules-57 and 58 of the Rules are also important and are reproduced below | -

57. An Annual Report on the work of the Council during the preceding financial year shall be prepared by the Director-General for the information of the Government of India and of the members of the Council and for laying on the Table of both the Houses of Parliament.

58. The Annual Report and Payment Account, Income and Expenditure Account and the Balance Sheet together with Audit Report, when accepted and passed at the Annual meeting of the Governing Body, shall be sent to the Government of India and for laying on the Table of both Houses of Parliament.

16. The Bye-laws governing the conditions of service of the employees of the respondent No.1-ICMR, the fundamental and supplementary rules framed by the Government of India and such other rules and orders issued by the Government of India from time to time mutates mutants apply to the employees of the Council. The Government of India General Provident Fund (Central Service) Rules as amended from time to time also apply for general provident fund of the ICMR. Bye-laws 6 and 7 are also important, which are reproduced below | -

6. The scales of pay for various posts under the Council shall be similar to those with corresponding duties under the Government of India. Provided, however, that the Governing 'Body of the Council may prescribe, in certain cases a different scale of pay for certain post/posts, having regard to the duties and responsibilities attached to them and after taking into account the Government of India's order issued from time to time on the subject.

7. The Central Civil Service (Classification, Control and Appeal) Rules and the Central Civil Service (Conduct) Rules for the time being in force and as amended from time to time shall mutates mutants apply to the Council's employees.

17. By no stretch of imagination, it can be said that the respondent No.1-ICMR is not an instrumentality of State from its Constitution, Rules, Bye-laws, functions and control. In any event of the matter, under Article 226 of the Constitution, the High Court has power to issue appropriate directions to any person or authority in appropriate cases. Language of Article 226 talks of no limitations on the power of the High Court. It is a fountain head of all the statutes. When the language of Article 226 is clear, I cannot put shackles on this Court to limit its jurisdiction by putting an interpretation on the words which would limit its jurisdiction. When any citizen or person is wronged, High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or association or body of individuals whether incorporated or not, or even an individual.

18. Article 226 does not inhibit the right of the High Court in the exercise of its jurisdiction. Its powers under Article 226 are all pervasive subject only to certain self imposed limitations it will exercise that power throughout the territory in relation to which it exercises jurisdiction. Clause (2) of this Article similarly empowers a High Court in relation to the territories within which the cause of action, wholly or in part, arises. Must I refer to any judgment when the language of Article 226 is so vast, the court itself has laid down certain guidelines and self imposed limitations subject to under which it will exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. For example, the High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. It does not act like a proverbial "bull in china shop" in the exercise of its jurisdiction under Article 226. In Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav and Ors. the court said that if rights were purely of a private character no mandamus could issue, and that if the management of the college was purely a private body with no public duty mandamus would not lie. In this case, the appellant, a trust, was running a science college and was affiliated to the Gujarat University. There was some dispute regarding implementation of certain pay scales of the teachers which was raised by the University Area Teachers Association. The Chancellor of the University gave his award on the dispute which was accepted by the State Government as well as the Gujarat University. Instructions were issued to all the affiliated colleges to pay their teachers in terms of the award. The appellants instead of implementing the award served notice of. termination upon 11 teachers on the ground that they were surplus and approached the University for termination of their services. That was refused. The trust then decided to close down the college itself and informed the University that from a particular year it would not admit any student. The college teachers filed a writ petition seeking a writ in the nature of mandamus or any other appropriate writ, direction or order directing the appellants to pay to them their due salary and allowances etc. The petition was resisted by the appellant trust and one of the grounds was that it was not a statutory body and not subjected to the writ jurisdiction. The High Court allowed the petition and on certificate granted the trust filed the appeal before the Supreme Court. In para-10 of the judgment the Supreme Court has noticed two questions for consideration and one of these being "the maintainability of the writ petition for mandamus as against the management of the college". The contention raised was that the trust was a private institution against which no writ of mandamus could be issued. The court observed that the law relating to mandamus had made the most spectacular advance. The court then referred to as to how the prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. It said that in England the prerogative writ of mandamus was confined only to public authorities to compel performance or public duty and for them the 'public authority' meant everybody which was created by statute and whose powers and duties were defined by statute. The court pointed out that Article 226, however, conferred, wide powers on the High Court to issue writs in the nature of prerogative writs. This, the court said, was a striking departure from the English law, and under Article 226 writ could be issued to any person or authority and it could be issued for the enforcement of any of the fundamental rights and for any other purpose. Then the court held as under | -

"The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "Any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied."

19. In A K Kraipak and Ors.v. Union of India and Ors. the Supreme Court observed as under | - "The aim of the rules of natural justice, is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at, a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry."

20. In view of the above discussions, I am of the considered view that respondent No. l-IGMR is an authority in terms of Article 12 of the Constitution of India. In any event of the matter, ICMR is amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. Without going further into the various aspects of the controversy as raised by the petitioner during the course of hearing, respondents were directed to produce the resolution of the Executive Committee of the respondents which could have constituted the Selection Committee which interviewed the candidates on 27.7.1996. The respondents did not place before this Court any resolution of the Executive Committee of the respondents authorising substitution of the members of the Selection Committee which initially was constituted in terms of advertisement dated 1.8.1995. In terms of the Bye-laws of the Indian Council of Medical Research, power to make appointment to the posts maximum of pay-scale of which is above Rs. 2,000/ = vests with the Executive Committee of the ICMR, therefore, if there was a change in the method and manner as well as deviation from the terms and conditions of the advertisement then it was the Executive Committee of the respondent which ought to have authorised the Director General of the respondent-ICMR. The Director General in this regard had no power on its own to change the parameters or widen the zone of consideration as has been argued before me either by changing the Selection Committee or inviting fresh nominations or dispensing publication of second interview in the newspapers.

21. Bye-laws 5 of the ICMR pertains to power of the Executive Committee, it was in the domain of the Executive Committee to appoint the Selection Committee and in view of the fact that four out of seven members, who were the members of the first Selection Committee, were not available, the substitution of four new members to the Selection Committee was without the authority of law. Majority of the members of the second Selection Committee were new, who had no occasion to deal with or interview the petitioner, who was interviewed by other members of Selection Committee on 27.12.1995, the stand of the respondent that the petitioner was considered in absentia and no prejudice has been caused to him, cannot be sustained by any stretch of imagination. The research work, papers and. other articles were all with the respondent at the time when the applications were made by the candidates. Fixing of interview or viva voce assumes significance as it is done not only to test the intellectual ability of a candidate but to test his overall personality, his intellect and other aspects of his work. In Mohan Kumar Singhania and Ors. v. Union of India and Ors.1992 Supp (1) SCC 594, it is held | -

".......the written papers permit an assessment of culture and intellectual competence. This interview permits an assessment of qualities of character which written papers ignore; it attempts to assess the man himself and not his intellectual abilities."

"........the written examination assess the man's intellect and the interview test the man himself and 'the twain shall meet' for a proper selection."

22. I do not agree with the argument advanced by the respondent regarding the fact that no prejudice was caused to the petitioner as the petitioner had been considered in absentia. As a matter of fact, respondent could have taken the stand that as petitioner was not available, the petitioner could not be considered and at the instance of the petitioner, the selection process could not be delayed. However, if the petitioner was considered in absentia then it was incumbent upon the respondent to have him considered by the same Selection Committee who had considered and had the occasion to have personal discussion with the petitioner on 27.12.1995 when for the first time the Selection Committee met. I would not like to dwell much on this point as I have held that the second Selection Committee constituted by the Director General of ICMR was without the authority of law inasmuch as the same was not constituted by the Executive Committee of the respondent No.1-ICMR. Even as per the Annexures appended to Bye-laws governing the conditions of service of the employees of the ICMR, posts carrying scale of pay maximum exceeds Rs.2,000/ = per month the appointing authority is the Executive Committee of the respondent No.1-ICMR. That being so, it was not in the competence of the Director General of ICMR to either constitute the second Selection Committee and it was also not within the domain of the first Selection Committee to change the parameters of selection inconsistent with the public advertisements wherein the cut-off date was prescribed, inter alia, stating that the applications were invited only upto 15.9.1995. It was rather specifically mentioned in the public advertisement which was published in the newspapers that applications received after closing date will not be considered. No such mandate was given in the advertisement that the Selection Committee in its own discretion can widen the zone of consideration by inviting applications after the last date. Nothing has been brought on record in spite of various opportunities granted to the respondent to show that the extension of the zone of consideration, substitution of names of four members of the Selection Committee from the original list of seven members of Selection Committee was authorised by the Executive Committee of the ICMR.

23. I also find force in the argument of the learned counsel for the petitioner that when the respondents had chosen to advertise the post in leading newspapers and they also sought nominations from different Government Agencies, it was all the more desirable that the respondent ought to have advertised and published the second advertisement also through vide publicity when the Selection Committee in its own wisdom thought of extending the zone of consideration by bringing in nominations from other quarters. The appointment, which was to be made, was for a public post and if that is so the rule of fair play and principles of natural justice would demand that all the intending candidates should have been given a fair chance of competing for a public post leaving no room for arbitrariness and unreasonableness.

24. In view of the discussions above, I hold that the respondents have not followed their own Memorandum of Association, Rules and Regulations and Bye-laws in the matter of selection and appointment of respondent No.4. Therefore, I allow the petition and quash the appointment of respondent No.4. Rule is made absolute.