N.G. Desai vs Government Of Nct Of Delhi & Others
2008 Latest Caselaw 911 Del

W.P. (C) No. 9046/2007             Page 1


                                                     REPORTABLE

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+            WRIT PETITION (CIVIL) NO. 9046 OF 2007



%                          Date of Decision : 3rd    July , 2008.

N.G. DESAI                               ....          Petitioner.

                  Through Mr. Amit S. Chadha, Sr. Advocate with
                  Mr. Kunal Sinha, Advocate.

                             VERSUS


GOVT. OF NCT OF DELHI & ORS.           ....           Respondents.

Through Mr. S.D. Singh & Mr. Rahul Kumar Singh, Advocates.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be

allowed to see the judgment?

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported YES

in the Digest ?

SANJIV KHANNA, J:

1. The petitioner, Dr. N.G. Desai, has challenged by way of the

present writ petition appointment of Dr. D.C. Jain, the respondent

No. 4 as the Director of the Institute of Human Behaviour and

Allied Sciences, the respondent No. 3. The post of Director of the W.P. (C) No. 9046/2007 Page 2

respondent No. 3 had fallen vacant on 15th September, 2007,

when the tenure of the last Director came to an end.

2. Respondent No. 3 is a society registered under the Societies

Registration Act, 1861 and is governed by it's Memorandum of

Association. The main object of the respondent No. 3 is to

promote growth and development of mental health, Neuro

Sciences- Somato- Behavioural and Allied Sciences, to develop

and to provide state of art facilities for diagnosis, investigation and

treatment in the field of mental health, Neuro Sciences etc. The

respondent No. 3 association has a general body and an

Executive Council. The Lieutenant Governor of Delhi is the

President of the general body and the Chief Secretary, Vice-

Chancellor and Additional Secretary, Ministry of Health and Family

Welfare are the Vice-Presidents. Other persons who are members

of the general body are specified in Rule 1.1 of the Rules and

Regulations of the respondent No. 3. Rule 2 stipulates that the

respondent No. 3 will have an Executive Council which shall have

powers and functions as specified in Rule 5. These powers and

functions are subject to general control and directions of the

general body. The Executive Council is responsible for the

management and administration of the affairs of the institute and

has power to create post, recruit and appoint staff.

W.P. (C) No. 9046/2007 Page 3

3. Under Rule 5.2, the Executive Council has the authority to

appoint Director of the respondent No. 3 institute with the approval

of the President of the general body and on such terms and for

such period as may be decided by the Executive Council. Under

Rule 5.3 the Executive Council can by a resolution appoint one or

more committees or sub-committees for such purpose and with

such powers as may be specified.

4. The Executive Council of respondent No. 3 in its 45th

meeting held on 22nd June, 2007 had examined the question of

appointment of a new Director including eligibility criteria. The

petitioner had participated in the said meeting as one of the

Executive Members. After discussion, the recruitment rules and

the eligibility criteria/parameters for appointment to the post of

Director, were decided to be fixed as under:-

"(I) A teaching, research and/or practical experience of not less than 21 years after Post Graduation.

(II) 7 years experience as Professor in comparable institutions like AIIMS, NIMHANS, etc. or as Director-Professor either in Central Government or GNCTD's Medical Institutions or equivalent.

(III) Those candidates who have served as Director/Head of any Institute of comparable eminence may also apply, regardless of (II) above."

W.P. (C) No. 9046/2007 Page 4

5. The Executive Council in this meeting examined appointment

of a new Director and the selection procedure, which was to be

followed. It was noticed that earlier for screening of applications,

two stage procedure had been followed with a Pre-Screening

Committee and a Screening Committee. To curtail the process, it

was decided to dispense with Pre-Screening Committee. The

Screening Committee which had on earlier occasion screened the

applications, consisting of Professor S.D. Sharma, former Director,

respondent No. 2 and Professor P.N. Tandon, former HOD (Neuro

Surgery), AIIMS, was again constituted, with Professor P.K. Dave,

former Director, AIIMS as a standby. Composition of the Selection

Committee was also considered and five persons were nominated

with stipulation that three experts would be decided in the next

Executive Council meeting to be held shortly.

6. The next meeting of the Executive Council was held on 16th

July, 2007. This meeting was also attended by the petitioner as

one of the Members of the Executive Council. The resolution

passed earlier with regard to recruitment rules/eligibility criteria for

appointment to the post of Director was discussed. On the

question of age, it was noticed that the prescribed age in the draft

Recruitment Rules was 50 years and it was decided that no such

restriction was required to be imposed in case of recruitment by

transfer on deputation. It was also decided that the existing W.P. (C) No. 9046/2007 Page 5

arrangement i.e. "direct recruitment/transfer on deputation" should

be continued to give flexibility in the mode of recruitment. Another

issue discussed was enhancement of the retirement age of the

Director to 62 years from 60 years.

7. The petitioner has himself enclosed the amended

Recruitment Rules for the Director. The post has been described

as a selection post and the method of recruitment as by deputation

or by direct selection for a maximum tenure of five years or upto

the age of 60 years, whichever is earlier. The age limit specified is

below 50 years, relaxable for Government servants or specially

qualified candidates. The experience requirements are the same

as were approved in the meeting of the Executive Council held on

22nd June, 2007 quoted above. The selection was to be done in

two stages with the Screening Committee and the Selection

Committee.

8. I have deliberately quoted above in detail the deliberations of

the Executive Council of which the petitioner was also a Member.

I may note here that in the writ petition, the petitioner has alleged

mala fides in the amendment of the eligibility requirements and

qualifications. It is stated that the relaxation or amendment in the

eligibility criteria especially with regard to 21 years practical

experience, instead of 21 years of teaching and research

experience was made with ulterior motives and mala fide intention.

W.P. (C) No. 9046/2007 Page 6

Similar allegations have been made with regard to other

amendments made in the eligibility requirements. The petitioner

during the course of arguments did not press this contention. The

petitioner had participated in the meetings of the Executive Council

and thereafter made an application for appointment to the said

post on the basis of amended recruitment rules/eligibility criteria.

He was a party to the resolutions by which amendments were

made. Possibly he cannot now after being unsuccessful

challenge the same. Reference in this regard can be made to

judgments of the Supreme Court in Madan Lal and Others

versus State of J&K and Others, reported in (1995) 3 SCC 486

and Dr. G. Sarana versus University of Lucknow and Others,

reported in (1976) 3 SCC 585, wherein it has been held that if a

candidate takes a calculated chance and participates in selection

process, he cannot turn around and subsequently contend that the

process was unfair or the Selection Committee was not properly

constituted. A candidate who has taken his chance cannot

subsequently on being unsuccessful challenge constitution of the

selection board and the principle of estoppel applies.

9. The petitioner during the course of arguments had restricted

his challenge to appointment of the respondent No. 4 on two

grounds. Firstly, the Screening Committee had only

recommended the petitioner and had held that all other applicants W.P. (C) No. 9046/2007 Page 7

were not eligible. It was submitted that the Selection Committee

could not have gone beyond the recommendations of the

Screening Committee and appointed respondent No. 4. Learned

counsel for the petitioner had also drawn my attention to the

counter affidavit filed by respondent Nos. 1, 2 and 3 i.e. the

Government of Delhi, Chief Secretary, Government of Delhi and

the respondent No. 3 institute in which it has been stated as

under:-

"That the applications and papers submitted by all the candidates were also got scrutinized by the Institute independently by the experienced persons of the institute and the in house committee had made out a chart with respect to each and every candidate as per the recruitment rules. Annexed herewith and marked as Annexure R-2 is the copy of the report of in house committee."

10. It was submitted that contrary to the resolution passed by the

Executive Council, the respondent No. 3 institute had constituted

an in house Screening Committee and which had made separate

recommendations. It was submitted that the respondent No. 3

institute in view of the Memorandum of Association and Rules and

Regulations of the respondent No. 3 should not have constituted

an in house committee.

11. Constitution of in house committee was not correct. The

Executive Council had accepted two stage process for selection of

a Director. There was to be a screening committee and a W.P. (C) No. 9046/2007 Page 8

selection committee. Members of the screening committee and

the selection committee, were also finalized by the Executive

Council. The resolutions passed by the Executive Council did not

permit constitution of an in house committee by the respondent

No. 3 institute or their officers. However, this alone does not

entitle the petitioner to succeed. The Selection Committee

constituted by the Executive Council have independently applied

their minds and have made the selection. The Selection

Committee had called four candidates for personal talk and after

interacting with the said candidates, verifying their qualification and

experience had made their recommendation. This is clear from

the proceedings recorded by the Selection Committee. The

Selection Committee consisted of three medical experts viz. Dr.

A.K. Aggarwal, former HOD Psychiatry, K.G.M.C., Lucknow, Dr.

A.K. Mahapatra, Director, S.G.P.G.I., Lucknow, Dr. P.P.S. Mathur,

Vice-Chancellor, Rajasthan Medical University, Jaipur, Dr. D.

Nagaraja, Director, NIMHANS, Bangalore and nominee of the

Government of India, Mr. Vivek Rae, Principal Secretary, Ministry

of Health and Family Welfare, Government of Delhi and Mr. R.

Narayanaswamy, Chief Secretary, Government of Delhi.

12. The purpose and object of the Screening Committee as is

clear from the nomenclature itself is to screen the applications

received and scrutinize them. This is apparent from the minutes of W.P. (C) No. 9046/2007 Page 9

the meeting of the Executive Council dated 22nd June, 2007,

wherein it was observed as under:-

"For smooth transition, the process of recruitment of new Director is required to be initiated with advertisement in daily newspapers/circulars to universities and medical institutions followed by constituting a screening committee to scrutinize the applications received as done earlier."

13. The object and purpose of the Screening Committee is to

screen and scrutinize the applications so as to make it convenient

for the Selection Committee. Perhaps it was thought that a large

number of applications would be received from candidates all over

India and the Selection Committee consisting of experts and senior

officers may not have adequate time. In the present case,

however, only five applications were received and out of five

applicants, four were called for personal meeting before the

Selection Committee. The Screening Committee did not call any

of the candidates for interview. It is, therefore, not possible to

accept the argument of the learned counsel for the petitioner that

the Screening Committee was to act as a Selection Committee

and only recommendations made by the Screening Committee

could have been examined and considered by the Selection

Committee. The role of the Screening Committee was to screen

and scrutinize the applications and put them before the Selection

Committee. The selection was to be made by the Selection W.P. (C) No. 9046/2007 Page 10

Committee and not by the Screening Committee. The Screening

Committee's role was specified in the minutes of the Executive

Council dated 22nd June, 2007. It was not to act as the Selection

Committee. Learned counsel for the petitioner in support of his

contention had relied upon judgment of this Court in Professor

(Dr.) Jagdish Dytta Baruah versus Indian Council of Medical

Research and Others, reported in 1999 (48) DRJ 363. The said

case is distinguishable. The petitioner therein was called for

personal discussion by the Selection Committee on 27th

December, 1995 but the Selection Committee on the said date

itself had decided to call for more applications. The second

Selection Committee held interviews again on 27th July, 1996 on

which date the petitioner therein was out of India. The Selection

Committee which had undertaken interviews on 27th July, 1996

was constituted of different members, than the Selection

Committee which had interviewed the petitioner on 27th

December, 1995. The second Selection Committee, therefore, did

not have any occasion to interview the petitioner therein. In this

context, a learned Single Judge of this Court had observed that the

institute in question could not have substituted members of the

Selection Committee, who had interviewed candidates on 27th

December, 1995. It was also observed that the Executive Council

of the institute in question had not authorized substitution of the W.P. (C) No. 9046/2007 Page 11

members of the Selection Committee. There was change in

method, manner as well as deviation from the terms and

conditions of the advertisement without authorization of the

Executive Council of the concerned institute. It was held that the

Director General of the institute in question could not have

constituted a second Selection Committee and it was not within his

domain to change the members of the Selection Committee, which

could be nominated by the Executive Council. In the present case,

the members of the Selection Committee were nominated by the

Executive Council. The said members as nominated by the

Executive Council have examined the candidates who had applied

and thereafter made the selection. Screening was done by a

Screening Committee and their report was available before the

Selection Committee. Respondent No. 3 no doubt had constituted

an in house committee but this in itself has not caused any

prejudice to the petitioner or vitiated the selection process. The

object and purpose of the Screening Committee was to just

scrutinize the application and not make selection. The selection

was to be made by the Selection Committee and not by the

Screening Committee. The Selection Committee has made the

selection.

W.P. (C) No. 9046/2007 Page 12

14. Respondents 1-3 have placed on record along with the

counter affidavit, the report submitted by the Screening

Committee. The said report reads as under:-

" The Screening Committee after taking into consideration the Recruitment Rules and the Guidelines for the Post of Director, Institute of Human Behaviour and Allied Sciences (IHBAS) has come to the following conclusion:

1. There are five applicants for the post of Director, IHBAS.

(i) Dr. Meena Gupta

(ii) Dr. Indira Sharma

(iii) Dr. D.C. Jain

(iv) Dr. Sunil Pradhan

(v) Dr. N.G. Desai

2. Three candidates as mentioned below are "self nominated" which is contrary to the guidelines.

(i) Dr. Meena Gupta (16/08/49)

(ii) Dr. Indira Sharma(23/06/49)

(iii) Dr. D.C. Jain (06/04/49)

The above mentioned three candidates are over age and would be retiring in less than 2 years, if any one of them is appointed; the post has to be filled in less than two years which will only create instability in the Institute. All the above three are not eligible.

3. Dr. Sunil Pradhan (25/06/57) fulfills the illegibility(sic) criteria based on his age, qualification, and nomination but does not fulfill the criteria of both teaching and administrative experience as required under the rules.

4. Dr. N.G. Desai fulfills the eligible criteria of age, qualification, teaching & research and administrative experience and nomination.

W.P. (C) No. 9046/2007 Page 13

As per the recruitment rules for the Post of Director, Dr. N.G. Desai is the only candidate who fulfills all criteria."

15. A perusal of the said report shows that the Screening

Committee had misdirected themselves. Candidature of three

candidates including respondent No. 4 was rejected on the ground

that they were self nominated and this was contrary to the

guidelines. The recruitment rules as finalized have been quoted

above. The recruitment rules do not state that a candidate cannot

be self nominated or no application would be entertained directly

from a candidate. On the other hand, the recruitment rules

stipulate that the post of a Director is a selection post and the

method of recruitment is by deputation or direct selection. As

pointed out by the respondents, advertisements had been

published inviting applications for the post of Director. The said

advertisements did not specify that a candidate cannot make a self

application and he must be nominated by a third person.

16. It appears that letters were also written by the former

Director of the respondent No. 3 institute to Vice-Chancellors of

Indian Universities, Principal/Dean of Medical Colleges etc. of

other institutes asking them to forward names of persons who in

their opinion were suitable for the said post. In the said letter it

was stated that a person cannot nominate himself. The reason W.P. (C) No. 9046/2007 Page 14

was obvious and calls for no explanation. The addressees were

asked to nominate or recommend a third person. In such cases,

self nomination was prohibited. However, any person who was

eligible was entitled to apply for appointment to the post of Director

pursuant to the advertisements.

17. The second reason given by the Screening Committee to

reject the candidature of three persons including respondent No. 4

was that they were over age and would be retiring in two years. I

have referred to the deliberation and the decision of the Executive

Council in this regard. The Recruitment Rules stipulate that the

candidate should not be more than 50 years but this was relaxable

in case of Government servants or specifically qualified

candidates. Thus, there was no absolute bar. The recruitment

rules do not stipulate any other requirement with regard to the

period of tenure except that the appointment to the post of Director

would be for a period of five years or upto the age of 60 years,

whichever is earlier. It is, therefore, apparent that the Screening

Committee had erred and made mistakes while examining the

applications. In any case, the report of the Screening Committee

was not binding and final. The Screening Committe did not

interview any of the candidates. The ultimate authority and right to

select was vested with the Selection Committee. The Selection

Committee deemed appropriate to call and give personal hearing W.P. (C) No. 9046/2007 Page 15

to four candidates out of five candidates who had applied. The

four candidates were interviewed and thereafter recommendation

to select respondent No. 4 was made. The said recommendation has

been accepted. I may note here that the petitioner was nominated by Dr.

D. Rangarajan who was a Member of the Selection Committee but

had recommended the name of the respondent No. 4, in

preference over the petitioner.

18. The second contention raised by the learned counsel for the

petitioner was that the respondent No. 4 does not meet and satisfy

the eligibility criteria as he had worked as a professor only for a

period of two years, was over age and had been a Director of LRS

Institute of T.B. and Respiratory Diseases only for a period of ten

months and that too as an additional charge in the absence of a

regular Director. It was submitted that the petitioner does not

qualify and meet the eligibility requirement Nos. (II) and (III)

mentioned above. At first blush, I was inclined to agree with the

learned counsel for the petitioner as admittedly respondent No. 4

had been only given additional charge as a Director of L.R.S.

Institute of T.B. and Respiratory Diseases, New Delhi, while he

continued to hold the post of Additional Director General,

Directorate of Health Services. I may also note that the

respondent No. 4 had not undergone the selection process for the

appointment to the said post of Director, L.R.S. Institute of T.B.

W.P. (C) No. 9046/2007 Page 16

and Respiratory Diseases. However, on deeper consideration I do

not find any merit in the said contention. I may note here that

scope of judicial review in matters of selection by an expert

committee is not similar to that of an appellate authority and is

limited. This Court cannot go into comparative merits and minds of

the members of the Selection Committee, who had applied

themselves to assess the merits and qualifications of the

candidates. The members of the Selection Committee were

experts and high ranking Government officers with the

Government of Delhi. They have given a unanimous report

recommending respondent No. 4. It was for the members of the

said Selection Committee to decide whether L.R.S. Institute of T.B.

and Respiratory Diseases, New Delhi is an institute of repute or

not and, therefore, whether respondent No. 4 satisfies the

condition of Clause (III) i.e. has served as a Director/head of an

institute of comparable eminence. It is not for the Court to go into

the question whether L.R.S. Institute of T.B. and Respiratory

Diseases is an institute of comparable excellence or not.

However, I may note that the post of Director, L.R.S. Institute of

T.B. and Respiratory Diseases carries a pay scale of Rs.22400-

24500. Besides, respondent No. 4 had more than thirty years

experience and was head of the Department of Neurology since

1981.

W.P. (C) No. 9046/2007 Page 17

19. The recruitment rules do not specifically stipulate that a

person should have been appointed as a Director/head of an

institute of comparable eminence by way of selection process.

The requirement in the recruitment rules is that a candidate

should have served as a Director/head of an institute. There is no

other requirement and it is not stated that additional charge or ad

hoc or officiating appointment shall not be treated and regarded as

sufficient. The recruitment rules do not make any distinction

between an additional charge/officiating appointment or ad hoc

appointment and substantive appointment. The recruitment rules

only specify that the person should have worked as a Director or

as a head of an institute. There is no further stipulation and

condition. It may be relevant to state here that the post of

Additional Director General of Health Services also carries the

same pay scale of Rs.22400-24500. Posts of Additional Director

General of Health Services, head of institutes and organizations

have been quoted at Serial No. I (ii) in Schedule 3 of the

notification dated 8th October, 1996 issued by the Ministry of

Health and Family Welfare in the Rules called Central Health

Services Rules, 1996.

20. Decision of a Division Bench in Union of India versus D.P.

Sharma, reported in 123 (2005) DLT 706 relied upon by the W.P. (C) No. 9046/2007 Page 18

counsel for the petitioner is distinguishable as it relates to

interpretation of FR-49 and the pay scale admissible to a person

who is given current duty charge. The question of experience and

eligibility requirement under the recruitment rules is entirely

different. The recruitment rules have to be interpreted on the basis

of the language used and employed therein. The recruitment rules

do not use the words "substantive post". The only requirement is

that the candidate should have served or worked as a

Director/head of an institute of eminence. The service may be in

any capacity and is not relevant for the rule. The qualification

required is not dependent upon the type of holding or capacity in

which the post of Director/head was held but performance and

discharge of functions and duties as a Director/head is relevant. It

cannot be said that the said eligibility criteria is not met by the

respondent No. 4.

21. On this aspect, I may refer to the case of State of Madhya

Pradesh and Another Vs. Laxmi Shankar Mishra, reported in

(1979) 2 SCC 270, wherein the Supreme court referred to and

interpreted the expression "should have worked on the post for a

minimum period of seven years" and rejected the contention that

the relevant provision required that candidates should have

worked on a substantive post for period of seven years. It was

accordingly observed as :-

W.P. (C) No. 9046/2007 Page 19

"9. Mr Gambhir, learned Counsel for the petitioner urged that the expression: "should have worked on the post for a minimum period of 7 years in the same institution" would, in the context of the rule and the consequences flowing from it, mean only a substantive post on which the Head Master/Principal was confirmed and the confirmed holder of the substantive post for a period of 7 years would be entitled to absorption as envisaged by Rule 3(b). On a pure grammatical construction of the expression it would indisputably appear that the person claiming to be absorbed must have worked on the post of Head Master/Principal of a High/Higher Secondary School for a minimum period of 7 years. Emphasis is on the experience gained by working on the post of Head Master/Principal. A person incharge of the post also works and discharges the duties and functions of the post of which he has taken charge. Even an officiating incumbent of the post does discharge the functions and duties of the post. While examining the relative positions of confirmed Deputy Engineers and Officiating Deputy Engineers in S.B. Patwardhan v. State of Maharashtra this Court observed that the officiating Deputy Engineers discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in the respective assignments. Viewed from this angle, the confirmed holder of a substantive post would be discharging the functions attached to the post and when some one is placed in that very post in an officiating capacity or directed to hold charge of the post, he would be required to perform the duties and discharge the functions of the post rendering identical service. If the rule expressly did not make any differentiation between the person working as a confirmed holder of substantive post and an incharge or officiating holder of the post, is there W.P. (C) No. 9046/2007 Page 20

anything in the expression itself which by necessary implication excludes service in any other capacity except as a confirmed Head Master/Principal in a substantive post? A confirmed holder of a substantive post may look tautologous because one can only be confirmed in the substantive post."

22. In Doctor Asim Kumar Bose versus Union of India and

Another, reported in (1983) I SCC 345, the Supreme Court

examined rules of the Central Health Services and on

construction thereof held that service rendered in ex-officio

capacity as an Associate Professor could be counted towards

requisite teaching experience. The Supreme Court observed that

there was no provision in the rules therein that the experience

must be gained on or after regular appointment. There is no

difference in experience acquired on regular appointment or

experience acquired with ex-officio designation. The rules did not

state that experience gained in an ex-officio capacity shall not be

counted or ignored as relevant experience for determining

eligibility.

23. If the relevant rules were differently worded and required

substantive appointment to the post of Director/head of the

institute, the position may have been different. A person may not

be a permanent or substantive employee for the purpose of

gaining experience, as experience gained even while holding W.P. (C) No. 9046/2007 Page 21

additional charge, is experience gained while serving on the said

post.

24. In view of the above discussion, I do not find any merit in the

present writ petition and the same is dismissed. However, in the

facts and circumstances of the case, there will be no order as to

costs.

                                                  (SANJIV KHANNA)
                                                       JUDGE

JULY       03, 2008
VKR