Dillip Kumar Parida vs All India Institute Of Medical ...
2006 Latest Caselaw 214 Del

JUDGMENT

Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 12.2.2004 by which he dismissed WP(C) No. 4107/2003 titled Dr. Dillip Kumar Parida v. All India Institute of Medical Sciences and Ors. and WP(C) No. 4107/2003 titled Dr. Dillip Kumar Parida v. All India Institute of Medical Sciences and Ors. and WP(C) No. 3834/2003 titled Dr. Sudhir Kumar Majhi v. All India Institute of Medical Sciences and Ors.

2. Heard learned counsel for the parties and perused the record.

3. The facts in detail have been set out in the judgment of the learned Single Judge and hence we are not repeating the same except where necessary.

4. In WP(C) No. 4107/2003 the prayer was for a Writ of Certiorari to quash the selection and appointment of respondent No. 5 as Assistant Professor in the Department of Radiotherapy in the All India Institute of Medical Sciences which was set up under All India Institute of Medical Sciences Act, 1956 (hereinafter referred to as 'the Act').

5. The recruitment and appointment to all posts in the AIIMS including the Level 1 post of Assistant Professor is done in accordance with the All India Institute of Medical Sciences Recruitment Rules, 1981. A copy of the said Rules is Annexure P-2 to the writ petition. The selection to Group 'A' posts including that of the entry level post of Assistant Professor is made on the recommendation of the Standing Selection Committee constituted by the AIIMS under Section 10 of the Act.

6. In the present case we are concerned with the validity of the selection and appointment of respondent No. 5 to the post of Assistant Professor in the Department of Radiotherapy in the AIIMS.

7. Interviews for the post of Assistant Professor (Radio Therapy) were held on 1.4.2003. On the said date out of 35 candidates called for the interview, 30 candidates turned up and were interviewed by the Standing Selection Committee and the experts. Although there were 9 members in the Standing Selection Committee, only 6 attended the interview and it is alleged that none of whom was specialized in Radiotherapy. There were three experts in the interview. Two of them, Prof. D.P. Aggarwal, Head, Department of Radiotherapy, Sawai Mansingh Medical College, Jaipur and Prof. R.K. Vyas, Head, Department of Radiotherapy, Gujarat Cancer Research Institute, Ahmedabad, were external experts and Prof. G.K. Rath, Head of Department of Radiotherapy, AIIMS, was the internal expert.

8. The Selection Committee recommended the name of respondent No. 4. Respondent No. 5 was placed first in the waiting list and the appellant was placed second in the waiting list.

9. The Governing Body met on 4.6.2003 and ratified the recommendations of the Standing Selection Committee. The appellant found that his name did not figure in the list of candidates selected for appointment to the post of Assistant Professor in the Department of Radiotherapy and instead the appointment was offered to respondent No. 4, who did not join and hence respondent No. 5 was appointed.

10. It is alleged in para 43 of the writ petition that it has come in the knowledge of the appellant that the selection committee graded the appellant and respondents 4 and 5 as follows:-

(i) The appellant was graded A+ (Excellent) by all the experts.

(ii) Respondent Nos. 4 and 5 were both graded as C (Poor) by the experts. A chart showing the grades awarded to the appellant and respondent Nos. 4 and 5 is Annexure P-7 to the writ petition.

11. It is alleged in paragraph 46 of the writ petition that respondent No. 4 despite being awarded much inferior grade (C grade) by the experts was selected on 28.5.2003 by totally ignoring the grading given by experts and recommended for appointment to the Governing Body. Since respondent No. 4 did not join, respondent No. 5, who was first in the waiting list was given the appointment . Hence the writ petition.

12. It is alleged in the counter affidavit of AIIMS that the Standing Selection Committee constituted under Section 10(5) of the Act held the selection. It is submitted that the Court should not interfere with the process of selection done by the Selection Committee consisting of eminent persons in the medical field. It is submitted that this Court cannot sit in appeal over the decision of the selection committee.

13. Counter affidavits have also been filed by respondent Nos. 4 and 5 and we have perused the same.

14. It may be mentioned that Rule 17(b) of the All India Institute of Medical Sciences Rules, 1981 states:-

Selection to Group 'A' posts shall be made on the recommendations of the Standing Selection Committee constituted by the Institute under Section 10 of the All India Institute of Medical Sciences Act,1956. No appointment to a post shall be made unless the post has been created in accordance with Rule 7 of the All India Institute of Medical Sciences Rules, 1958 and the approval of the competent authority has been obtained for the particular appointment.' Rule 17 also states:-

The Director may with the approval of the President invite experts who may include members of the Institute's faculty and such others from outside who are eminent in their respective field of specialty, to assist the Selection Committees in making selections of suitable candidates to teaching posts and such other posts in the Institute as may be considered necessary by him.

15. Thus, a perusal of the statutory recruitment rules shows that selection to Group 'A' posts have to be made on the recommendations of the selection committee constituted under Section 10 of the Act. Thus, perusal of the recruitment rules shows that the main task of the selection is of the selection committee constituted under Section 10 of the Act, while the experts are only to assist the selection committee.

16. In the present case the selection committee has selected respondent No. 4 and placed respondent No. 5 at No. 1 in the waiting list , while the appellant is at No. 2 in the waiting list. This Court cannot sit in appeal over the statutory rules merely because the experts have given the appellant better grade than the respondents 4 and 5.

17. In support of the appeal a great deal of emphasis was placed on the fact that the rating given by the experts in favor of the writ petitioner/ appellant was better than the rating awarded to the appointee namely, the respondent No. 5. Counsel submitted that an entry level position like Assistant Professor in the Faculty in a specialized subject, had to be necessarily selected from amongst the best candidates. None of the Selection Committee members were experts in the concerned discipline i.e. Radio Therapy whereas all the experts (consisting of two external and one internal expert) were Men of eminence in the field whose word ought to have prevailed. As far as the appellant was concerned, they unanimously rated him above the others. Being an institution of National and public importance, the most merited candidates had to be selected; the 5th respondent, who was not rated above the appellant by the experts could not be termed the best. The appointment was therefore attacked as arbitrary.

18. Learned counsel submitted that the Selection Committee's recommendations in favor of the 5th respondent was arbitrary because it completely ignored the rating given by the experts. He sought to rely upon the guidelines, to say that the rationale for inclusion of experts was to assess the professional knowledge and competence of the concerned candidate. Counsel placed reliance upon the judgment of a Division Bench reported as Dr. S.M. Bose v. All India Institute of Medical Sciences and Ors. 1993 (26) DRJ (DB) to contend that the Selection Committee was under a duty to record reasons why it was not acting upon the recommendations of the experts who were involved by it in the selection process. He has also relied upon the decision of another Division Bench Dr. Raghunath Chand Anand v. All India Institute of Medical Sciences (DB).

19. Learned counsel for the respondents refuted the allegations of arbitrariness. Counsel for the AIIMS produced the gradings of all the candidates and the recommendations of the Selection Committee which held its Meeting on 4.2.2003. It was contended that as per provisions of Sections 10(5) and (6) read with Section 14(i) of the Act, and Rule 6(1) of the Rules, the primary responsibility of making appointments was with the concerned Standing Committee, which in the present case was the Selection Committee. The Recruitment Rules framed under the provisions of the Act, in 1981 also reiterated this position; the Standing Selection Committee Rule 15 of the 1981 Rules was the body empowered to select candidates. The procedure for recruitment was spelt out in Rule 18(b) of the said 1981 Rules. The Standing Selection Committee was the only empowered body. The role of the experts in the selection process was advisory and their involvement was not essential for the purposes of making selection to any vacancy.

20. Counsel submitted that the guidelines formulated for the role of experts all pointed out their role as advisers. He relied upon Para B of the Guidelines to say that the experts are to assess the Selection Committee in selecting the most suitable candidates and their evaluation therefore cannot extend beyond that.

21. Counsel submitted that there is no infirmity in the approach adopted by the learned Single Judge who had carefully examined all relevant aspects including the grading of experts, its consideration by the Selection Committee and the correctness of the process of selection. It was submitted that the Court cannot sit in appeal over the views of an expert statutory body, which the Selection Committee undoubtedly was. Counsel also submitted that though members of the Selection Committee might not have been experience in the concerned discipline, they had eminence in the academic and medical field, and conscious of the obligations imposed on them. The inputs provided by the non-member experts were duly taken into account while making the final recommendations. In the absence of any allegation of mala fide or illegality, the procedure adopted could not be faulted or termed as arbitrariness.

22. Before we proceed with the discussion on merits, it would be relevant to notice the two Division Bench judgments in Dr. Bose's case and Dr. Anand's case (supra). In the first decision the Court was concerned with the legality of the action of the Governing Body of AIIMS, brushing aside the recommendations of the Selection Committee. The Court concluded that when the statutorily charged body, i.e. the Selection Committee had recommended the particular candidate, the Governing Council although being the supreme body, was nevertheless under a duty to act on such recommendations; if it chose to ignore the recommendations, there ought to have been some valid consideration or cogent reasons. The Court held as follows :-

Ordinarily, the power to decide whether to make or not to make any appointment, notwithstanding the availability of a vacant post, vests in the appointing authority. No candidate, even if selected, can claim a right to be appointed. He can raise no grievance if the appointing authority decides not to fill up the vacancy. But, the position will be different where the vacancy is to be filled up. In such a case, where the task of interviewing candidates and making selection is entrusted to an independent body, appointment should be made on the basis of recommendations made by the selection committee, which means in the order of merit of candidates arranged by the selection committee. This, however, does not mean that the appointing authority is bound by the recommendations, nor that it may ignore the recommendations and act on its own sweet will. If the appointing authority wants to agree with the recommendations, there would be no difficulty. But if it wants to disagree with the recommendations, it must give reasons for, disagreement. The appointing authority may legitimately not agree with the recommendations, for instance, where it may find some illegality, bias or mala fides, vitiating the recommendations made by the selection committee. It will also be open to the appointing authority not to agree where it finds that the selected candidate suffers from some inherent disqualification, or even where appointment of a particular candidate may not be in public interest for other good reasons viz... bad conduct or character. Should the appointing authority disagree with the recommendations made by the selection committee, it must have good, strong and cogent reasons for doing so. In any event, on a challenge in Court, for whatever the appointing authority may do, it is bound to disclose the reasons to justify its decision.

23. Dr. Raghunath Chand Anand's case (supra) the view taken in Dr. Bose's case was affirmed; applied; the Court held that the Governing Body had to act in accordance with recommendations of the Selection Committee. Though recommendations of the Selection Committee were termed as advice; nevertheless they would be binding on the Governing Body which would make a departure for valid and rational considerations.

24. We are of the opinion that the observations in both the judgments deal with situations where the governing body, standing in the position of an appointing authority, differed with the recommendations of the Selection Committee. This Court, held that such a course could not be adopted since the Selection Committee was an independent body charged with the duty of selecting candidates. The interpretation placed upon the provisions of the Act and the Regulations is unexceptional. In this case, however, the facts are not similar. The Selection Committee, which is the statutorily empowered body under Rule 17(b), to select candidates, was unanimous in its choice 'it ranked or placed the 5th respondent higher than the appellant. The non-member experts had indicated that the petitioner was better merited. That advice was also considered while making the final recommendations. The role of the experts is purely advisory and they do not figure either under the Act or any rule as members entitled to participate in the selection process. If their views are different, that would at best constitute a factor to be considered by the Selection Committee but in the Scheme of the Act and Rules, such views of the experts cannot acquire primacy. In any case, it cannot be considered binding on the Selection Committee unlike the situation where the recommendations of the Selection Committee are binding in the governing body.

25. It is no doubt true that the experts gave better grading to the appellant than the 5th respondent. There is no dispute that the experts were eminent in the concerned field namely, Radio Therapy. In fact one of them is a Member of Faculty of AIIMS. But under the scheme of the Act and Rules their role is advisory, though entitled to consideration. There is nothing suggestive in the records that such gradings were not considered by members of the Selection Committee.

26. The recruitment is concerned with a teaching post in a medical specialization. Advances in modern technology require that experts, equipped to handle and assess performance are given due weightage. Selection to posts in academic and technical organizations or institutions can be no exception. This has to be also balanced with the need to ensure that a candidate though possessing technical competence and merit, is suited for the peculiar needs of the institution. After all teaching and research constitute perhaps the most important charter of an academic institution like the All India Institute of Medical Sciences. Therefore, assessment by the Selection Committee, keeping in perspective the institutional objectives or goals and the potential of the candidate to fill the assigned role, would also be crucial and of great significance. If all these aspects are cumulatively put together, the role of the Court in judicial review, in the absence of a direct and active role of the experts (mandated by law) in the selection process, and in the absence of allegations of mala fides, has to be non-interventionist. The Court cannot substitute its opinion and sit as a Super Selection Committee, directing that the choice made by the experts should prevail when Rule 17(b) clearly states that the view of the Selection Committee will prevail. In the absence of illegality or other proven grounds, judicial intervention by the Court would be destructive of the autonomy enjoyed by AIIMS. We are, therefore, are of the opinion that the reasoning of the learned Single Judge cannot be faulted. The role of the experts is only advisory, while that of the Selection Committee is decisive under the Rules

27. Before parting with this appeal, it would be necessary to record that this case has thrown up certain issues which might require more serious considerations in the functioning of an Institution of pre-eminence like AIIMS. Being an Institution of National importance by virtue of Section 5, its functioning should be geared to ensure that the best available talent in the country is attracted and given due place. With the growth of knowledge and emergence of technology equipped to aid diagnosis and treatment of varied of ailments and symptoms, the challenge to pick the best personnel has to necessarily be addressed in a dynamic manner. Whilst there can be no dispute that the present method of selection of candidates is through persons of eminence, this case has shown that in certain given situations, persons equipped with skill and knowledge in a particular discipline may not be available or be part of the Standing Selection Committee. The Institute would have to deal with this issue, and consider the most effective manner to balance both considerations i.e. technical competence assessed by experts, and institutional objectives, while making selections. We are of the opinion that the Institute should consider, appropriately altering the composition of the Selection Committee by suitably amending the Recruitment Rules to ensure that when it considers recruitments to various specialties, at least one half of its membership consists of experts in the concerned discipline, or the specialized branch of medicine/surgery. In our opinion, such an amendment to the Recruitment Rules should be made so as to ensure that the best candidate in the specialized branch is selected. However, this Court cannot legislate and cannot amend the Recruitment Rules itself and can only make a recommendation to this effect. It is entirely up to the authorities concerned whether to accept this recommendation or not. However, we do hope that this recommendation of ours will be treated seriously by the concerned authorities because this is the age of specialization and hence a generalist, or specialist in some other branch, may not be able to make a proper assessment of a candidate in a different specialized branch.

28. In view of the above, the Appeal is dismissed subject to the above observations.