Shri Krishan vs Union Of India & Others
2011 Latest Caselaw 4699 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Date of decision: 23rd September, 2011
+                           W.P.(C) No. 5035/2011
       SHRI KRISHAN                                              ......Petitioner
                          Through: Mr. Suhail Dutt, Sr. Advocate with Mr. Azhar
                                   Alam and Mr. Sandeep Goswami, Advs.
                                  versus

       UNION OF INDIA & OTHERS                                  .....Respondents
                           Through: Mr. Harin P Raval, ASG with Mr. Ravinder
                                    Agarwal, CGSC & Mr. Sachin Datta, CGSC.
                                    Mr. Harish N. Salve, Sr. Advocate with
                                    Mr. Chetan Gupta, Adv for R-2.
                                    Mr. Trideep Pais, Ms. Suhasini Sen and
                                    Mr. Rahul Kriplani, Advs for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may              Yes
       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?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the appointment of the respondent no.3

Shri Mahesh Rangarajan as the Director of the respondent no.2 Nehru

Memorial Museum and Library Society and further seeks a mandamus for

selection / appointment of the Director of the respondent no.2 Society in

accordance with the Rules of the respondent no.2 Society and after issuing

an open advertisement and notifying the Employment Exchange regarding

the vacancy. As on the date of filing of the writ petition, the respondent no.3

had not taken over charge of the post of Director (the term of earlier Director

having not expired till then), the interim relief of restraining the respondent

no.3 from assuming the post of Director was also claimed.

2. Notice of the petition and application for interim relief was issued.

Pleadings have been completed and the hearing concluded on 8 th August,

2011. Since the respondent no.3 was to assume charge of the post w.e.f.

9th August, 2011, while reserving judgment it was directed that the taking

over of the charge by the respondent no.3 shall be subject to orders in this

petition.

3. The respondent no.2 is a Society registered in or about the year 1966,

under the Societies Registration Act, 1860 inter alia to take over the

administration and management of the Nehru Memorial Museum and

Library with all its assets and liabilities from the Ministry of Education,

Government of India. As per the Rules & Regulations of the respondent

no.2 Society, the property, movable and immovable of the Society and

administration of its affairs vests in the Executive Council of the Society.

The Rules and Regulations provide for the appointment by the Executive

Council, with the prior approval of the Central Government, of a Director, to

be the Principal Executive Officer of the respondent no.2 Society,

responsible for the proper administration of the affairs of the respondent

no.2 Society under the direction of the Executive Council.

4. It is not in dispute that the post of Director of the respondent no.2

Society is a selection post to be filled up by the method of direct recruitment

with educational and other qualifications inter alia as under:-

"Essential:

(i) Eminent scholar with specialization in modern Indian history and ability to conduct and guide original research.

(ii) Published research work of high merit.

(iii) At least ten years' experience in a responsible position in Government Autonomous Organization or a University."

5. The methods of recruitment as per the Service Bye-Laws of the

respondent no.2 Society are as under:-

"7. Methods of Recruitment

1. Recruitment to a post under the Society may be made;

                        i)     by promotion;
                        ii)    by direct recruitment;
                        iii)   by transfer/deputation;
                        iv)    by re-employment of a retired employee
                               of the Society or of any other organization
                               or
                        v)     on contract for a specified period

2. The Appointment Authority shall in each case determine the method by which vacancies shall be filled. In doing so, the Appointing Authority shall pay due regard to, and where necessary, comply with the provision of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959.

9. Direct Recruitment

Appointment to any post by direct recruitment may be made on the recommendations of a selection committee from amongst:-

i) candidates recommended by the Employment Exchange on requisition in

respect of those categories of employees of which recruitment has to be made through the Employment Exchange, and/or

ii) from amongst the candidates applying in response to an advertisement; and/or

iii) from amongst persons selected through personal contact; and/or

iv) from amongst candidates who have been recommended by such persons, or authorities from whom recommendation has been called for by the Director; and/or

v) from amongst candidates employed in Government autonomous or statutory organizations, who apply in response to any circular."

6. It is the case of the petitioner, that the respondent no.2 Society being

an Autonomous Body under the control of Government of India, the

appointments therein are further governed by the Office Memorandums /

Instructions issued from time to time by the Department of Personnel and

Training (DOPT), Government of India. Reliance in this regard is

placed on :-

A. Office Memorandum dated 25th October, 1994 which is as under:

"NO:AB-14017/36/94-Estt. (RR) Government of India Ministry of Personnel, P.G. & Pensions Department of Personnel & Training.

25-10-94

OFFICE MEMORANDUM

SUBJECT:- Search Committee - Composition of

1. The undersigned is directed to say that for recruitment to certain scientific, technical and specialized posts, Search Committees are set up for locating persons with the requisite background, knowledge and experience. The primary object of the Search Committees is to be assist the Government for preparing a list of suitable persons to enable the right selection. Therefore, they have a vital rule to play in the selection process.

2. There are guidelines laid down to regulate the operation of such Committees. There are however no instructions indicating the situations in which Search Committees should be appointed and what should be their composition.

3. This issue has been examined and it is considered desirable to issue instructions which will regulate the constitution and operation of Search Committees. Accordingly the following guidelines are hereby laid down for this purpose.

3.1 Situation in which a Search Committee may be constituted

(i) A Search Committee can be constituted only for

posts which do not fall within UPSC's purview. For posts which fall within UPSC's purview, recruitment has to be on the basis of Commission's recommendations.

(ii) It is to be kept in mind that as a rule, appointments in Government are to be made on the basis of open advertisement. Therefore, proper advertisement of vacancies to be filled up by direct recruitment is an essential requirement. There may, however, be situations where advertisement itself may not result in adequate response for recruitment to similar posts which require specialized scientific/technical knowledge and experience. It is only in these situations that a Search Committee should normally be appointed to locate suitable persons with the desired qualifications and experience to augment the response to the advertisement. The Search Committees should be appointed only for sufficiently senior posts which require specialized scientific/technical knowledge and experience. It has been decided that Search Committees may be constituted where considered necessary only for posts of the level of Director (`4500-5700) and above. Recruitment to posts below this level may be only through open advertisement. It may also be noted that the constitution of Search Committee cannot be a substitute for advertisement of posts and its role is only to supplement the recruitment effort through advertisement.

3.2 Composition of Search Committees.

While constituting a Search Committee, the following guidelines should be followed:

i. The Search Committee should normally consist of not more than five members including the

chairman.

           ii.    The Search Committee should be chaired by the
                  concerned Secretary.      However, where it has

been constituted for a Secretary level post, a senior and distinguished academician may be invited to chair the Search Committee.

iii. No person who is a recipient of grants/funding from the Ministry concerned or who is closely related to such a recipient should be invited to join the Search Committee.

iv. The composition should be well-balanced. The Committee should invariably include persons of appropriate standing having acknowledged expertise in the relevant field of relevant specialization. At least half of such experts should be from outside the Department;

v. Where officers of Government, Autonomous bodies, PSUs etc. are nominated as members, they should be at least one level above the post to which recruitment is being made;

vi. It is noticed that in many cases the same experts are invited for year together. While it may not be possible to lay down a hard and fast rule as regards the period for which an expert may be asked to participate in such Committees' the tendency to rely on the same experts for long period of time is to be avoided. Considering the rapid pace of advancement in research and obsolescence of technology, it is necessary to infuse fresh blood in such committees in order that they may locate personnel who are engaged in research in frontiers of the relevant field.

vii. In some cases, the rules themselves prescribe search cum selection Committee(s). Usually the rules also lay down that the Committee should comprise a certain number of outside experts to be nominated by the Secretary. In such cases, it should be ensured that the composition is strictly as per rules. While selecting members of such committees, the guidelines set out in the preceding paras should also be adhered to.

3.3 Approval of composition of the Search Committee by DOPT

(i) It has also been decided that the composition of Search Committee for posts of and above the SAG level (i.e. pay scale of `5900-6700/7300) should be decided with the prior approval of Department of Personnel and Training.

(ii) As regards other posts below SAG level, the composition of the Search Committee, wherever necessary may continue to be decided by the Ministries/Departments themselves. However, it should be ensured that composition of such Committees is in conformity with the guidelines contained in para 3.2 above.

3.4 In future, all proposals sent to Establishment Officer for submission to A.C.C. for posts in the scale of `5900-7300/- should be accompanied by a certificate certifying that the composition of Search Committee has the approval of the Department of Personnel and Training. In all other cases it should be certified that the constitution of the Search Committee is in conformity with the existing guidelines.

3.5 Application

(i) These instructions will, however, apply to future recruitments and not to the cases where a Search Committee has already been constituted and has commenced its activities.

(ii) These instructions may also be applied, mutatis/mutandis to autonomous bodies, funded wholly or partly by Government, in respect of appointments which are required to be made by or with the approval of Government of India.

4. All Ministries / Department are also requested to forward to this Department a list of posts to which recruitment is made on the basis of a Search Committee. This list may be sent to this Department within a fortnight of the receipt of this O.M."

B. Office Memorandum dated 5th December, 2003 which is as under:

"No.AB.14017/56/2003-Estt.(RR) Government of India Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training New Delhi

Dated: 5th December, 2003

OFFICE MEMORANDUM

Subject: Situations in which Search Committees can be formed: clarifications regarding.

1. In the recent past instances have come to the notice of this Department where Search Committees have been

constituted by certain Administrative Ministries for the purpose of recruitment to various civilian posts in the Government, as well as in the autonomous/statutory organizations (where the appointments are made by the Government or with the approval of the Government), without the approval of this Department and also without following the essential procedure of recruitment i.e., on the basis of an open advertisement as stipulated vide this Department's OM No. AB-14017/36/94 - Estt.(RR) dated 25.10.1994. Consequently, instructions regarding composition of Search Committees and the situations in which they may be constituted are reiterated in the ensuing paragraphs for strict compliance by all concerned.

2. Essential pre-requisites for the formation of Search Committees.

In accordance with the Guidelines of this Department, immediately after a post is created, the Recruitment Rules for the same should be framed if the post is likely to continue for one year or more. Needless to say, in the first instance, action to fill the post as per the provisions in the Recruitment Rules has to be initiated: the procedure of Search Committee cannot be a substitute for the normal recruitment process.

3. Situations in which Search Committees may be constituted

(i) The post involved does not fall under the purview of the UPSC;

(ii) Since, as a rule, appointments in Government are to be made on the basis of open advertisement, this requirement has to be followed in the first

instance, without fail, and it is only in situations where advertisement may not result in adequate response, that a Search Committee should normally be constituted;

(iii) Constitution of Search Committee cannot be a substitute for advertisement of posts and its role is only to supplement the recruitment effort through advertisements;

(iv) Such Search Committees should be constituted only for sufficiently senior posts at the level of Director (in the scale of `14300-18300) or above, which require specialized scientific/technical knowledge and experience; and

(v) The composition of the Search Committee needs to be approved by the Department of Personnel and Training in each case, if the post proposed to be filled by this procedure is in the scale of `18400-22400 or above.

4. These instructions are clarificatory in nature and the provisions of DoPT's OM No.AB-14017/36/94-Estt.(RR) dated 25.10.1994 (copy attached) should be strictly followed by all Administrative Ministries/Departments.

5. Hindi version will follow."

C. Office Memorandum dated 30th July, 2007 which is as under:

"No.AB.14017/11/2004-Estt.(RR) Government of India Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training New Delhi.

Dated 30th July, 2007

OFFICE MEMORANDUM

Subject: Setting up of Search committees/Search- cum-Selection Committees.

As the various administrative Ministries/Departments are aware, the circumstances under which Search Committees can be constituted and their composition etc. are presently regulated by the instructions issued under this Department's OM No. AB-14017/36/74-Estt.(RR) dated 25.10.1994, reiterated under a subsequent OM No. AB.14017/56/2003-Estt.(RR) dated 4.12.2003. These instructions are primarily applicable to posts in the Government but also apply mutatis mutandis in the case of posts in autonomous/statutory organizations. Separately, instructions have been issued by the EO's Division of this Department, on policy and procedure for appointments in autonomous institutions through the ACC which contain, inter alia, guidelines on constitution of Search-cum- Selection Committees for posts in such bodies, their constitution etc., the latest guidelines, in this regard, being those issued under OM No.28/13/2006-EO (SM.II) dated 3.7.06.

2. It has come to the notice of this Department that the principles brought out in the instructions of this Department, as referred to above, have not been kept in

view fully, while setting up Search Committees/Search- cum-Selection Committees, in some cases. There exist also some shortcomings on the composition of the Search- cum-Selection Committees for posts in autonomous organizations/institutions.

3. The matter has, therefore, been reviewed in its entirety and it has been decided that, henceforth, the principles, as set forth in the ensuing paragraphs, shall be kept in view by all concerned while setting up Search Committees and Search-cum-Selection Committees (for posts in autonomous organizations).

4. Search Committees for post in Government.

In accordance with the guidelines of this Department, immediately after a post is created, the Recruitment Rules for the same should be framed, if the post is likely to continue for one year or more. Action to fill up the post, as per the provisions in the Recruitment Rules, has to be initiated as the procedure of Search Committee cannot be a substitute for the normal recruitment process.

4.1 Situations in which Search Committees may be constituted, their composition etc.

(i) The post involved should not fall under the purview of the UPSC;

(ii) Since, as a rule, appointments in Government are to be made on the basis of open advertisement, this requirement has to be followed without fail, and it is only in situations where advertisement may not result in adequate response, that a Search Committee should normally be appointed;

(iii) Constitution of Search Committees cannot be a substitute for advertisement of posts and their role is only to supplement the recruitment effort through advertisements;

(iv) A minimum period of atleast four weeks may be given to the candidates to respond to the circular/advertisement for appointment under this mechanism;

(v) Search Committees should be constituted only for sufficiently senior posts at the level of Director (in the scale of `14300-18300) or above, which require specialized scientific / technical knowledge and experience;

(vi) The composition of the Search Committee needs to be approved by the Department of Personnel and Training in each case, if the post proposed to be filled by this procedure is in the scale of `18400-22400 or above.

(vii) The Committee should be chaired by the Secretary of the Ministry/Department concerned. Where it is constituted for a Secretary-level post, a senior and distinguished academician may be invited to chair the Committee. The Committee should normally consist of not more than 5 members including the Chairman;

(viii) Where officers of Government, Autonomous Bodies, PSUs etc. are nominated as Members, they should be atleast one level above the post to which recruitment is being made;

(ix) No person who is a recipient of grants/funding from the Ministry concerned or who is closely related to a recipient should be invited to join the

Search Committee;

(x) The composition of the Committee should be well balanced. It should invariably include persons of appropriate standing having acknowledged expertise in the relevant field or specialization. At least half the number of such experts should be from outside the Department;

(xi) The tendency, repeatedly to rely on the same experts for several recruitments over long periods of time, is to be avoided. It is necessary to infuse fresh blood in such Committees in order to ensure that they identify the right personnel engaged in research in frontiers of the relevant field;

(xii) The panel recommended by the Committee will remain valid for one year. If no selection is made from the panel within a period of one year, a fresh Committee shall be constituted to prepare a fresh panel. Such a Committee may also consider the names of persons recommended in the earlier panel;

(xiii) In some cases, the Rules themselves prescribe Search Committee/ Search-cum-Selection Committee and in such cases, it should be ensured that the composition is strictly as per the Rules. Wherever it is necessary, amendments to the Rules may be carried out to ensure that the composition of the Committee is in conformity with these instructions.

5. Search-cum-Selection Committees for posts in autonomous/statutory bodies etc.

Though the principles applicable for posts in Government

as in para 4 ibid would generally apply, the following principles would specifically apply to Search-cum-Selection Committees for posts in autonomous / statutory bodies, entities registered under the Societies Registration Act, etc:-

          (i)    Each Ministry/Department shall constitute a
                 Search-cum-Selection   Committee       with   the

concurrence of the DOPT, for (a) all appointments to the post of Chief Executives and (b) for all appointments carrying a pay scale of `18400-

22400 and above.

(ii) Ministries/Departments will have the discretion to choose the Chairman of the Committee. They may, however, ensure that the person, so chosen, is distinguished and of sufficiently high standing commensurate with the level of the post for which selection is to be recommended by the Committee;

(iii) The Committee should normally consist of not more than 5 members including the Chairman and at least one outside expert of eminence. The Committee should also include the Chief Executive of the autonomous institution even if the scale of pay of the post of Chief Executive is same as of the post for which selection is being made unless the selection is for the post of the Chief Executive;

(iv) The panel recommended by the Committee will be valid for one year. If no selection is made from the panel within a period of one year, a fresh Committee shall be constituted to prepare a fresh panel. Such a Committee may also consider the names of persons recommended in the earlier panel;

          (v)    The panel recommended by the Committee will


                 have     to   be    accepted    in   toto   by the

Ministry/Department. Any deviation in the matter will require the prior approval of the ACC;

(vi) Extension in tenure of persons other than the Chief Executives shall also be considered by the Search-

cum-Selection Committee and its recommendations shall be accepted by the Ministry/Department. Any proposal to reject the recommendations will require the approval of the ACC. Authority for approval of extension in tenure of Chief Executives will rest with the ACC;

(vii) All appointments, which are covered by specific statutes, are to be carried out on the basis of the statutory provisions. Wherever the statutes provide for appointment to a post with the approval of the Central Government, the appointment to the post of Chief Executives of the pay scale of `18400-22400 and above will be within the purview of ACC and the Search-cum-

Selection Committee mechanism envisaged in these instructions will apply;

(viii) Appropriate Recruitment Rules/Regulations for the post involved shall be formulated by the administrative Ministry, wherever the relevant statutes do not incorporate the eligibility conditions. The norms and criteria for selection, shall, in any case, be finalized by the autonomous institution, with the concurrence of the Ministry concerned and the same shall be made widely known well in advance of the selection;

(ix) The vacancy shall be given wide publicity through open advertisement/circulation among various Ministries / Departments / State Governments / Autonomous bodies / Research Institutes etc., as

also made available on the website of the Ministry/Department;

(x) A minimum period of at least four weeks may be given to the candidates to respond to the circular/advertisement for appointment under this mechanism.

6. All autonomous institutions, which are not set up under their own statutes, shall modify their Memoranda and Articles of Association, Bye-laws, etc. in order to incorporate fully these guidelines. The institutions shall report compliance to the DOPT through their administrative Ministry/Department along with copies of their revised Memoranda/ Articles of Association, Bye-laws etc. These institutions, thereafter, shall not be required to take approval of DOPT each time for the Search-cum- Selection Committee constituted by them. The institutions shall, however, send a copy of the Search-cum-Selection Committees constituted by them to the DOPT.

7. The above exercise may be completed by all institutions within a period of three months."

7. It is the case of the petitioner, that the term of the then Director of the

respondent no.2 Society was to expire on 9th August, 2011; that the

respondent no.2 Society instead of notifying the Employment Exchange or

issuing any advertisement in this regard, in or about February, 2011

appointed a Search Committee and on the recommendation of the Search

Committee, on 8th July, 2011 appointed the respondent no.3 as the Director,

due to take charge on 9th August, 2011. The petitioner claims that he learnt

of the vacancy and the appointment of the respondent no.3 from news

reports. The petitioner claims to be eligible for the said post and has filed

this petition contending that without giving an opportunity to all those

desirous of applying for the said post and without following the mandatory

procedure, the respondent no.3 has been illegally appointed.

8. The respondent no.2 Society in its counter affidavit has pleaded that

recommendations were invited from 45 Universities/prominent individuals

for recommending the incumbent for the post of Director; that the parent

University of the petitioner did not consider it worthy to recommend the

petitioner as a candidate; that the Search-cum-Selection Committee

constituted for the said purpose has unanimously selected the respondent

no.3 for the post of Director. It is further the case of the respondent no.2

Society that since the petition neither alleges any malice in fact in relation to

the appointment nor does expressly state that the respondent no.3 does not

fulfill the eligibility for appointment and/or is not qualified for appointment,

there is no warrant for judicial review of the case. It is pleaded that the

respondent no.3 has been appointed in an absolutely fair and transparent

manner. With respect to the Service Bye-Laws (supra), it is stated that they

confer discretion, whether or not to advertise for a post which is to be filled

by direct recruitment and advertisement is by no means mandatory as

alleged by the petitioner. It is further the case of the respondent no.2 Society

that though it had advertised in the past for the post of Director but the

response to such advertisements was abysmal and the post always had to be

filled through a combination of the methods provided in Service Bye-Law

9 (iii) and (iv) and never through applications received on advertisement. It

is stated that in response to the advertisement in the year 2005 also, only

three applications were received and all of which were found to be

unsuitable. It is thus pleaded that the Search-cum-Selection Committee

decided to adopt a combination of the methods provided in Service Bye-Law

9 (iii) and (iv). It is further pleaded that resort to Employment Exchange

candidates is only one of the modes of direct recruitment and the Selection

Committee was free to and resorted to the other method(s) available.

Reliance is further placed on Section 4(4) of the Employment Exchanges

(Compulsory Notification of Vacancies) Act, 1959 to contend that there is

no obligation to fill any vacancy through the Employment Exchange only.

9. The respondent no.1 Union of India has in its counter affidavit

pleaded that the Service Bye-Laws of the respondent no.2 Society have been

approved by the Central Government and would thus prevail over any other

Office Memorandum or Instructions issued. It is also pleaded that another

writ petition being W.P.(C) No. 4624/2011 purportedly has been filed in

public interest before the Division Bench of this Court and in which also,

interim stay of appointment sought was not granted. It is pleaded that the

petitioner has no vested right to be appointed as a Director and the

respondent no.3 is a person of high eminence with a brilliant academic

record and the approval of the Central Government to the appointment of the

respondent no.3 was given vide letter dated 5th July, 2011 itself i.e. prior to

the filing of the present petition. The maintainability of the writ petition

against the respondent no.2 Society is also disputed. It is reiterated that

Maharshi Dayanand University, Rohtak with which the petitioner is

presently employed, did not deem it appropriate to recommend the name of

the petitioner for the post, inspite of the Vice Chancellor of the said

University having been intimated of the vacancy and asked to recommend

the name of suitable candidates.

10. The respondent no.3 in his counter affidavit has stated that he fulfills

the eligibility criteria for the post; was interviewed on 11th May, 2011 and

issued the appointment letter dated 8th July, 2011 and pursuant to which he

received permission for deputation on 26th July, 2011.

11. The senior counsel for the petitioner has argued that the Service Bye-

Laws of the respondent no.2 Society have to be read along with the Office

Memorandums/Instructions aforesaid of the Department of Personnel and

Training and which mandate open advertisement and which has admittedly

not been done. Reliance is placed on State of Bihar v. Upendra Narayan

Singh (2009) 5 SCC 65 laying down that the equality clause enshrined in

Article 16 mandates that every appointment to public posts or office should

be made by open advertisement so as to enable all eligible persons to

compete for selection on merit and that with the same objective the

Employment Exchanges Act (supra) was enacted. It was further held that

every public employer is duty bound to notify the vacancy to the

Employment Exchange so as to enable it to sponsor the names of eligible

candidates and also advertise the same in the newspapers having wide

circulation, employment news bulletins, get announcement made on Radio

and T.V. and consider all eligible candidates whose names may be

forwarded by the Employment Exchange and/or who may apply pursuant to

such advertisement.

12. The Ld. ASG appearing for the respondent no.1 Union of India has

invited attention to the communication dated 25 th May, 2011 sent by the

Search Committee to Universities and other prominent individuals including

to the Vice Chancellor of Maharshi Dayanand University, Rohtak where the

petitioner is employed, seeking suggestions of names of suitable candidates.

Attention is also invited to the letter dated 9th March, 2011 of the Chairman

of the Executive Council of the respondent no.2 Society to the Vice

Chancellors of various Universities seeking suggestions of names of suitable

candidates for the post of Director. He has further contended that the Service

Bye-Law 9 (supra), by use of the expression "and/or" between various

methods of direct recruitment has left the discretion in the Executive Council

and the Executive Council having adopted one of the said methods, in the

absence of any mala fides, this Court ought not in the exercise of power of

judicial review, interfere with the appointment to the high office of Director.

It is also contended that no PIL even is permissible in service jurisprudence

and the present petition filed, before the respondent no.3 had occupied the

post, is not maintainable. It is further urged that no ground for interference in

exercise of powers of judicial review is made out if the appointment is

otherwise found to be in consonance with rules. It is contended that the

Office Memorandums/Instructions are not applicable to the respondent no.2

Society. It is further contended that the petitioner has no vested right to the

post.

13. The senior counsel for the respondent no.2 Society has contended that

the petitioner neither has any right nor any legitimate expectation to be

appointed; there is no suggestion even of any malice in the appointment of

respondent no.3 or that the selection of the respondent no.3 was pre-

determined; that none of the other nine persons whose names were

recommended and in preference to whom the respondent no.3 has been

selected have complained of any error in the procedure followed; that the

appointment satisfies the indices of fairness; that the highly respected

Dr. Karan Singh is the Chairman of the Executive Council of the respondent

no.2 Society and the name of the respondent no.3 was recommended by

eminent personalities as the historian Shri Ramachandra Guha, Mr. Andre

Beteille and Shri Pratap Bhanu Mehta. It is further contended that the Office

Memorandums/Instructions relied upon are not statutory.

14. The senior counsel for the petitioner in rejoinder has contended that

the communication purportedly sent to Maharshi Dayanand University,

Rohtak is addressed to the earlier Vice Chancellor and not to the Vice

Chancellor at the contemporaneous time.

15. The Ld. ASG and the senior counsel for the respondent no.2 Society

have responded by contending that the communication was sent at the e-mail

address of the University and thus being addressed in wrong name is

immaterial.

16. The first question for determination is as to what is the procedure

prescribed for appointment. Next, it is to be decided that if the prescribed

procedure has not been followed, what is the effect thereof.

17. The argument of the petitioner is, that the post could not have been

filled without advertising the same in newspapers and without notifying the

Employment Exchange; the same having admittedly not been done, the

appointment is vitiated.

18. The appointment of the respondent no.3 has been done on

recommendation of Selection Committee from amongst persons selected

through personal contact or from amongst candidates who have been

recommended by such persons or authorities from whom recommendation

has been called for by the Chairman of the Executive Council.

19. Service Bye-Law 7.2 (supra) leaves the method in which the

vacancies are to be filled up, to be determined by the Appointing Authority;

however in doing so, the Appointing Authority is to have regard to and

where necessary comply with the provisions of the Employment Exchange

Act. Service Bye-Law 9 uses the expressions "may" and "and/or". What

falls for determination is,

i.) Whether it was necessary for the Executive Council of the respondent no. 2 Society to notify the Employment Exchange; ii.) Whether the word "may" in Service Bye-Law 9 is to be read as "shall";

iii.) Whether the expression "and/or" in Service Bye- Law 9 is to be read as requiring the Selection Committee to make recommendations from amongst the candidates falling in all the categories mentioned therein or the Selection Committee is empowered to choose any one of the categories from amongst whom to make the recommendations; and, iv.) What is the impact if any of the Office Memorandums / Instructions aforesaid of the Department of Personnel and Training, Government of India on the Service Bye-Laws of the respondent no. 2 Society.

20. Service Bye-Law 7.2 requires regard to and compliance with the

provisions of the Employment Exchanges Act. Service Bye-Law 9(i) again

refers to recommendees of the Employment Exchange as one of the

categories from which the Selection Committee may recommend. Though

the expression "and/or" in Service Bye-Law 9 is indicative of it being left to

the discretion of the Selection Committee to make the recommendations for

appointment either from all the categories mentioned therein or from any of

them (one of which is recommendees of Employment Exchange) but a

harmonious reading of Bye-Laws 7.2 and 9 shows that the Selection

Committee could not have ignored the recommendees of the Employment

Exchange, regard whereto and compliance of provisions whereof if

necessary has been made compulsory under Service Bye-Law 7.2.

21. The Employment Exchanges Act was enacted to provide for

compulsory notification of vacancies to Employment Exchanges and Section

4 thereof mandates the employer in any establishment in public sector to,

before filling up any vacancy or any employment, notify the same to the

Employment Exchanges. Section 3 of the Act exempts applicability thereof

to certain vacancies. However, the same does not apply to the post under

consideration in this petition. Section 7 of the Act makes failure to so notify

the vacancy punishable with fine. Service Bye-Law 7.2, by requiring due

regard to be given to the provisions of Employment Exchanges Act,

requires the respondent no.2 Society to comply therewith even if not

mandatory. However, in the face of respondent no.2 Society being

admittedly an autonomous Body under the control of the Government of

India, would also fall within the expression "establishment in public sector"

used in Section 4 of the Employment Exchanges Act and as defined in

Section 2(f) thereof, making it necessary (within the meaning of Service

Bye-Law 7.2) for respondent no.2 Society to comply with the provisions of

the said Act.

22. Though a two Judge Bench of the Supreme Court in Union of India v.

N. Hargopal (1987) 3 SCC 308 had held that non-notifying the Employment

Exchange where so required to be notified will not vitiate the appointment

so made but the said view was differed from by a three Judge Bench in the

subsequent decision in Excise Superintendent v. K.B.N. Visweshwara Rao

(1996) 6 SCC 216 and which has been the consistent view since then. In

Arun Kumar Nayak v. Union of India (2006) 8 SCC 111 it was held that

intimation to the Employment Exchange about the vacancy, where required

and consideration of the candidates sponsored through the Employment

Exchange is mandatory. It was further held that in addition and consistent

with principles of fair play, justice and equal opportunity it is also necessary

to call for the names by publication in the newspapers having wide

circulation, announcements on radio, television and employment news

bulletins and consider all the candidates who have applied; this is necessary

to afford equal opportunity to all the eligible candidates in the matter of

employment. The Apex Court further held that the rationale behind such

direction is also consistent with the sound public policy that wider the

opportunity of the notice of vacancy by wider publicity, the better candidates

with better qualifications are attracted, so that adequate choices are made

available and the best candidates would be selected and appointed to

subserve the public interest better.

23. The Apex Court in Upendra Narayan Singh (supra) also observed on

consideration of the ratio of the earlier judgements that the object of Section

4 of the Employment Exchanges Act is to enable the Employment

Exchanges to sponsor the name of the eligible candidates and advertise the

same in newspapers having wide circulation, employment news bulletin, get

announcements made on radio, television and consideration of all eligible

candidates who may apply in pursuance to various modes of advertisement

by the Employment Exchanges.

24. Thus, I conclude that under the Service Bye-Laws it was necessary

for the respondent no.2 Society to, before making appointment to the post of

Director, to comply with the provisions of the Employment Exchanges Act,

i.e. to notify the Employment Exchange and consider the recommendees of

the Employment Exchange for appointment.

25. Though in view of the aforesaid conclusion, need is not felt to

consider the impact of the Office Memorandums / Instructions aforesaid of

the DOPT but it is not deemed expedient to leave the said question

unanswered. Need is however not felt to discuss the Office Memorandums

dated 25th October, 1994 and 5th December, 2003 supra since the Office

Memorandum dated 30th July, 2007 states that the matter had been reviewed

in entirety and lays down afresh the principles to be followed in the matter

of appointments to posts in Government and in autonomous Bodies. It is not

in dispute that the principles prescribed therein as applicable to autonomous

Bodies apply to the respondent no.2 Society.

26. Even though the principles for autonomous Bodies do not expressly

provide for open advertisement as in the case of principles laid down for

posts in Government but do state that the principles applicable for posts in

Government would "generally apply" to filling up of posts in autonomous

Bodies also. Clause 5(ix) in the Office Memorandum dated 30 th July, 2007

though while prescribing wide publicity through open

advertisement/circulation among various Ministries / Departments / State

Governments / Autonomous Bodies / Research Institutes as also through

website of the Ministry / Department, uses the symbol "/" which indicates

that either of the said options can be opted but in the light of the law

aforesaid, has to be construed as prescribing use of all the said modes.

Rather during the hearing it was enquired from the ASG whether the post

was advertised on the website of the concerned Ministry. The answer was in

the negative. The crucial words in Clause 5(ix) are "wide publicity". If one

or few of the several options prescribed do not satisfy the test of wide

publicity, it cannot be said that Clause 5(ix) has been complied with.

27. The Apex Court recently in State of Orissa v. Mamata Mohanty

(2011) 3 SCC 436 has reiterated the settled legal proposition that no person

can be appointed without inviting applications from all eligible candidates. If

any appointment is made by merely inviting names from Employment

Exchange or putting a note on the notice board, that will not meet the

requirement of Articles 14 and 16 of the Constitution. For a valid and legal

appointment, mandatory compliance with the said Constitutional

requirement is to be fulfilled. The equality clause enshrined in Article 16

requires that every such appointment be made by an open advertisement as

to enable all eligible persons to compete on merits.

28. Another interesting principle of construction/interpretation may be

considered. Service Bye-Law 9 as aforesaid uses the expression "and/or"

and as observed above, vests absolute discretion in the Executive Council /

Selection Committee so interpreting the said Bye-Law, the Executive

Council / Selection Committee can very well opt for only circulating the

post in Government autonomous or statutory organizations, listed last in the

said Service Bye-Law. I have wondered whether the selection process can be

limited to such an extent. The Apex Court in Gujarat Housing Board

Engineers Association v. State of Gujarat (1994) 2 SCC 24 interpreted the

use of the word "or" between various options as laying down priority with

the option listed first having precedence over that following. It was held that

to construe otherwise would mean that the Bye-Law provides no guidelines

as to which of the options is to be adopted. It was further held that, that

interpretation should be placed which avoids arbitrariness and conferment of

uncanalised power. Service Bye-Law 9 of the respondent no.2 Society read

in this fashion would require the Executive Council / Selection Committee to

give precedence to the Employment Exchange over advertisement and to

advertisement over personal contact and so on. Seen in this light also, the

procedure followed cannot be approved of.

29. In the face of the law aforesaid and the Office Memorandum dated

30th July, 2007, the expressions "may" and "and/or" in Service Bye-Law 9

supra have to be read as "shall" and "and" respectively and the same has to

be interpreted as requiring the Selection Committee to call for

recommendations and applications through all the modes prescribed in the

said Bye-Law and to make recommendation for appointment after

considering all the said persons. I am also of the view that the need and

occasion for issuing the Office Memorandums/Instructions aforesaid arose

only for the reason of an ambivalent situation prevailing in this regard owing

to a plethora of Rules, Regulations, Bye-Laws some of which are of

antiquate origin. Primacy thus has to be given to the Office Memorandum

over the Service Bye-Law.

30. Howsoever bona fide the reasons which prevailed with the Appointing

Authority and the Selection / Search Committee in the present case to not

publish open advertisement may be, the procedure followed, was in violation

of the procedure prescribed for appointment. The procedure followed cannot

be said to be such which could have informed all prospective applicants of

the vacancy or given them an opportunity to be considered therefor. The

communications stated to be sent by e-mail by the Chairman of the

Executive Council of the respondent no.2 Society and by the Selection

Committee to the various Universities and/or to other prominent individuals,

cannot be a substitute for open advertisement. The said e-mails even if

delivered to the concerned personnel in the University and seen by them,

still left it to them to inform or not to inform the prospective/desirous

applicants of the vacancy. It is not the case that the Vice Chancellors of the

Universities to whom the said communications were sent were required to or

did display the said communications on the notice boards of the Universities

so as to inform the faculty therein of the vacancy. Attention of the counsels

was invited to the recent appointments to the post of Chairperson of Debt

Recovery Appellate Tribunal and in which regard W.P.(C) No. 2417/2011

titled Ram Mohan Sharma v. UOI came to be filed. It was similarly found

that though intimation of the vacancy had been sent to the Registrars of the

various High Courts but without any obligation on the Registrars of the High

Courts to display the same to the prospective candidates. The procedure

followed was found to be not giving any option to all the persons eligible for

appointment an opportunity of being considered therefor. Interim stay of the

appointment process underway was granted. The Appointing Authority

subsequently agreed to consider for appointment the petitioners therein who

had thus been precluded from applying for the post.

31. Moreover, calling upon the Vice Chancellors of the Universities and

other Institutes to send the recommendations amounts to the Appointing

Authority/Selection Committee delegating the selection to the said Vice

Chancellors. The Vice Chancellors were not authorized to select or reject the

candidates for consideration and the Selection Committee by seeking the

recommendations of the Vice Chancellors certainly left the choice which the

Appointing Authority / Selection Committee was to exercise, to the said

Vice Chancellors and which is not permissible in law.

32. Thus the present is not a case of the action of the respondent no.2

Society being as per its Service Bye-Law though it could have adopted

better mode of wide publication and/or of having not followed the best

practice qua which the Apex Court in Reliance Airport Developers (P) Ltd.

v. Airports Authority of India (2006) 10 SCC 1 has held no judicial review

to be available but a case of non-compliance of the Rules prescribed for

making the appointment.

33. Once this Court finds that the requisite procedure for appointment has

not been followed, the settled rule of administrative law is that an Executive

Authority must be rigorously held to the standards by which it professes its

actions to be judged and it must scrupulously observe those standards on

pain of invalidation of an act in violation of them. This rule was enunciated

by Justice Frankfurter in Viteralli v. Saton 359 U.S. 535 where the learned

Judge said:

"An executive agency must be rigorously held to the standards by which it professes its action to be judged....Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed......This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword."

The Apex Court has accepted the aforesaid rule as valid and applicable in

India in Dr. Amarjit Singh Ahluwalia v. State of Punjab (1975) 3 SCC 503

and in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975) 1

SCC 421. The said principles were reiterated in Ramana Dayaram Shetty v.

International Airport Authority of India (1979) 3 SCC 489. It was held that

this rule, though supportable also as emanation from Article 14, does not rest

merely on that Article; it has an independent existence apart from Article 14.

It is a rule of administrative law which has been judicially evolved as a

check against exercise of arbitrary power by the executive authority.

34. The Supreme Court in K. Shekar v V. Indiramma (2002) 3 SCC 586,

inspite of noting that National Institute of Mental Health and Neuro Sciences

(NIMHANS) with the appointment process wherein it was concerned, was

an Institution of repute held that there can be "no islands of insubordination

to the rule of law" and actions of Institutions, however highly reputed, are

not immune from judicial scrutiny. It was indeed held that to preserve the

high reputation, there is a greater need to avoid even the semblance of

arbitrariness or extraneous considerations colouring the Institution's actions.

35. Jurisprudentially, personal contact as a mode of appointment cannot

be accepted. The same depends upon the perspective of an individual who

has not been vested with the responsibility of appointment. The Appointing

Authority cannot rely upon another to determine whether to recommend or

not to recommend the name of any person for consideration by the

Appointing Authority. Recruitment solely by personal contact is likely to

restrict the choice of applicants and is likely to constitute discrimination. If

the arrangements made for the purpose of determining who should be

offered employment involves application of requirement or condition that

the applicant should be personally recommended by another, it may have

adverse impact on particular persons and will infringe the equality clause.

36. This Court is therefore constrained to interfere in the appointment

process but with the clarification that merely because this Court has

interfered, does not tantamount to this Court having attributed any mala fide

or impropriety to the procedure adopted by the Executive Council of the

respondent no.2 Society or to the Selection / Search Committee or to the

suitability / eligibility of the respondent no.3 for the said post. The senior

counsel for the respondent no.2 Society also has fairly stated that the best

practice may have been to advertise the post. Once the same is admitted to

be the best practice, I fail to comprehend the hesitation in accepting the

same. The attitude of the respondent no.2 Society of wanting to proceed with

the appointment inspite of the best practice having not been followed is an

attitude of "chalta hai" plaguing the country. Unless the Court interferes at

the cost of pain, the attitude is likely to continue in the appointments to other

posts also. The Supreme Court also in A.S. Mittal v. State of U.P. (1989) 3

SCC 223 though in the context of medical negligence, noticed the

disturbing feature of prevalence of an air of cynical irreverence towards

values that has unfortunately developed and to the mood of complacence

with the continuing deterioration of standards. It was held that the remedy

lies in a ruthless adherence to the virtue of method.

37. Similarly, it is not for this Court to judge whether the petitioner is

suitable or not or whether the respondent no.3 is better than the petitioner, as

was suggested during the hearing. This Court being satisfied that the

petitioner has not had an opportunity to be considered for the post, the Court

cannot give any other answer to the petitioner but to allow to him an

opportunity to be so considered.

38. However as aforesaid, this Court does not desire the impact of this

order to create a vacuum or affect the functioning of the respondent no.2

Society in any manner whatsoever. It is thus clarified that notwithstanding

the appointment of the respondent no.3 being set aside, the respondent no.3

will continue to function and discharge his duties as the Director till the

completion of the procedure for fresh appointment and the respondent no.3

shall also be considered in the said appointment and it shall be open to the

Appointing Authority if satisfied that the respondent no.3 is the best

available candidate for the post, to continue with the appointment of the

respondent no.3 without any break whatsoever.

39. Before parting with the case, I may notice that though the petitioner in

the petition has also contended that the respondent no.3 does not fulfill the

qualifications and the constitution of the Selection Committee was not in

terms of office memorandums/instructions aforesaid but neither has the

senior counsel for the petitioner addressed any arguments on the said aspect

nor do I find any merit in the same.

40. The petition is therefore allowed. The procedure adopted by the

respondent no.2 Society in the matter of appointment of the respondent no.3

is held to be in violation of the prescribed procedure and the law.

Consequently, the appointment of the respondent no.3 to the post of Director

of the respondent no.2 Society is set aside and quashed and the respondent

no.2 Society is directed to as expeditiously as possible and latest within a

period of three months from today make fresh appointment. However as

aforesaid, the respondent no.3 shall till then continue to function and

discharge his duties as the Director and shall also be considered by the

Appointing Authority while making the fresh appointment and there will be

no bar to the selection of the respondent no.3 if found to be the best suited

candidate.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE)

23rd September, 2011/pp