P.K. Ramachandra Iyer & Ors Vs. Union of India & Ors [1983] INSC 204 (16 December 1983)

DESAI, D.A.

ERADI, V. BALAKRISHNA (J)

CITATION: 1984 AIR 541 1984 SCR (2) 200 1984 SCC (2) 141 1983 SCALE (2)1060

CITATOR INFO :

E 1984 SC1905 (1) R 1986 SC 157 (59) RF 1987 SC2086 (18) R 1987 SC2267 (10) RF 1988 SC 469 (11,12) D 1988 SC1291 (9) RF 1989 SC 19 (23) RF 1991 SC1173 (5) D 1992 SC 76 (3,8,9)

ACT:

Constitution of India, 1950 Articles 12 and 32-Indian Council of Agricultural Research-Whether instrumentality of Central Government-Whether covered by the expression other authorities-Whether amendable to writ jurisdiction Articles 14, 16 and 39(d)-Pay scale of post of Professor revised-Existing incumbents not granted the benefit of revised scale-New incumbents granted the revised scale-Defence of employer was there was marginal revision in qualifications for the post-Action whether discriminatory and unfair.

Articles 16-Selection Committee-Whether has power to relax essential qualifications for the post-jurisdiction of Courts to interfere with decision of Selection Committee- When arises.

Malafides-Selection Committee-Qualification requirement relaxed to suit preferred candidate-Selection whether vitiated.

Public employment-Experience to be of value and utility must be acquired after educational qualification obtained- Not while acquiring post-graduate qualification.

Indian Council of Agricultural Research 1977, Rules 13 and 14: Fixation of minimum qualifying marks for eligibility for viva-voce test-Further fixation of qualifying marks to be obtained at viva-voce for final selection-Validity of. Supreme Court Rules 1966 Order XL & Constitution of India, 1950 Article 137: Writ petition dismissed by High Court allowing preliminary objection that it had no jurisdiction to entertain petition-High Court becomes functus officio and decision on merits inconsequential- Supreme Court in later case over-ruling the same preliminary objection-Supreme Court entitled to examine matter on merits-Review Petition maintainable.

HEADNOTE:

The Royal Commission of agriculture constituted in 1926 recommended the setting up of the Imperial council of Agricultural Research-ICAR. In July 1929, ICAR was registered as a society with its office in the Secretariat.

It was wholly financed by the Government of India. By a resolution dated January 5, 1939 the Government of India modified the status of ICAR from a department of the Secretariat to one of an attached office of the Government of India. Recruitment to various posts in ICAR was made through the Federal Public Service Commission. Its expenses were voted upon as part of the expenses incurred in the Ministry of Agriculture. The control of the Government of India permeated 201 through all its activities. To it was transferred the Research Institutes set up by the Government of India. In order to make it financially viable a cess was levied and the proceeds were handed over to ICAR for its use.

On the advent of independence, the Imperial Council of Agricultural Research was redesignated as Indian Council of Agricultural Research. With effect from April 1, 1966 administrative Control over IARI and IVRI and other institutes was transferred to ICAR.

Rule 18 of the ICAR Rules provided that the Society shall establish and maintain its own Office, Research Institutes and Laboratories and that the appointments to the various posts should be made in accordance with the Recruitment Rules framed by the Government Body. This rule which was kept in abeyance in January 10, 1966 was brought into operation in its entirety effective from April 1, 1974.

The consequences of this rule becoming operative was that the Secretariat of ICAR ceased to be an attached office of the Ministry of Food and Agriculture.

The Indian Veterinary Research Institute was one of the institutes under the administrative control of ICAR. The post of Professor in IVRI in 1958 carried the pay scale of Rs. 700-1250. There were 6 posts of Professor in various disciplines. Three posts of Professors were held by the petitioners in Writ Petition No. 587/75. On the introduction of the pay-scales recommended by the University Grants Commission, the pay-scale attached to the post of Professor in the Institute was revised to Rs. 1100-1600 during the year 1970-71 and six new posts of Professors in various disciplines created. Each of the petitioners who was already holding the posts of Professor was not given the benefit of the upgraded pay-scales, while the new incumbents recruited to the newly created post were awarded the revised pay- scales. This led to disturbance in the inter se seniority in the cadre of Professors. In the Writ Petition W.P. No. 587/75 to this Court it was contended that as the petitioners fulfilled the minimum qualification prescribed for the post after upward revision of the pay-scales, denial of the revised pay-scales was discriminatory and violative of Article 14, and throughly arbitrary and unjustified.

On behalf of respondents it was asserted that the revised scale was not to be automatically granted to the petitioners-the existing holders, as the newly created posts in the cadre of Professor was not the same as the existing post, as there was marginal revision in the qualifications for the post of Professor in the revised scale.

The petitioner in the Review Petition No. 4/77 sought the review of the judgment of this Court dated 3rd October, 1975 in the Special Leave Petition No. 2339/75. He had filed a writ petition in the High Court questioning the correctness of the selection of respondent No. 6 for the post of Senior Bio-Chemist as he did not possess the essential qualification, and the order removing him from the membership of the post-graduate faculty of Indian Agriculture Research Institute. This petition was resisted by the respondents on the ground that neither ICAR nor IVRI was either a 'State or other authority' within the meaning of the expression in Article 12 of the Constitution. It was further contended that the Selection Committee had the power to relax the essential qualifications pertaining to experience, and that the Committee consisted of experts who were highly qualified persons, able at evaluating and assessing the relative merits of each of the candidates, and that, it would be unwise to substitute expert's decision by Court's decisions. The Writ Petition was dismissed by the High Court on the ground that ICAR being 202 a society registered under the Societies Registration Act, it was neither a 'State or other authority' within the contemplation of Article 12. It was further held that the relationship between the petitioner and ICAR was governed by the rules and the bye-laws of the Society and ICAR was free to fill the post of Senior Bio-Chemist in any manner it liked, and that as the petitioner was not removed from the membership of the Faculty, but ceased to be a member, it was not necessary to hear him.

This Court upheld the decision of the High Court by its judgment in S.L.P. No. 2339/75 and also rejected R.P. No. 79/76.

The Petitioner in Review Petition No. 80/76 sought review of the judgment in S.L.P. No. 702 of 1976 which was disposed of along with S.L.P. No. 2339/1975.

The appellant in C.A. No. 1043 of 1981 filed a writ petition in the High Court alleging that he was selected for the post of Senior Computer in the Indian Agriculture Statistics Research Institute, an affiliate of ICAR. The ICAR set up the Agricultural Scientists Recruitment Board- ASRB which framed rules in 1977 and decided to hold a competitive examination in 1978 to recruit scientists.

Selection was to be made by a competitive examination comprising a written test carrying 600 marks in the aggregate and viva-voce test carrying 100 marks. It was further provided that anyone to be eligible for being admitted in the merit list should also have the additional qualification of at least obtaining 40 marks in the viva- voce test. The appellant contended that he has secured 364 marks out of 600 in the written examination and 38 marks out of 100 in the viva-voce test, and that the action of Board in fixing minimum qualifying marks in the viva-voce examination and basing the final selection on this criterion lacked both the authority of law and rules. The High Court dismissed the Writ Petition in limine.

Allowing the Review Petitions, Writ Petition and Appesal:

HELD : 1. (i) In writ petition No. 587/75, the ICAR is directed by a mandamus to put the three petitioners in the revised scale of Rs. 1100-1600 sanctioned for the post of Professor effective from the day when others selected as Professors in sister disciplines were awarded the revised scale of Rs. 1100-1600. [247 A] (ii) In Special Leave Petition No. 2339/75, the ICAR is directed by a mandamus to award to Dr. Y.P. Gupta the scale of Rs. 1800-2250 from the date the same was given to respondent No. 6, Dr. S.L. Mehta. The arrears payable pursuant to the direction shall be paid within 3 months. Dr. Y.P. Gupta to be taken back as a member of the Faculty of the post-graduate school of IARI within a period of 3 months. [247 B] (iii) In S.L.P. No. 702/76, it is directed that a special Assessment Committee may be set up to examine the case of Dr. T.S. Raman for promotion to S-3 grade within a period of 3 months. [247 D] (iv) In C.A. 1043/81, the ICAR, and ASRB are directed to prepare the merit list in respect of those candidates who were called for viva voce test, but were not included in the merit list on the aggregate of marks obtained by them. If there is a vacancy and the appellant comes within the zone of selection he shall be 203 appointed. The appointment would be prospective and would be effective from the date of the appointment. [247 E-F]

2. (i) Apart from the criteria devised by the judicial dicta, the very birth of ICAR and its continued existence over half a century and its present position would leave no doubt that ICAR is almost an inseparable adjunct of the Government of India having an outward form of being a Society. It could be styled as a Society set up by the State and therefore, would be an instrumentality or agency of the Central Government and therefore, it is 'other authority' within the meaning of the expression in Article 12, and the writ jurisdiction can be invoked against it. [216 B] (ii) ICAR came into existence as an integral department of the Government of India and later on became an attached office of the Central Government. The composition of the ICAR as evidenced by Rule 3 could not have been more governmental in character than any department of the Government. The Governing Body of the Society consist of a President of the Society, who is none other than a Cabinet Minister of the Government of India. Other members of the Governing Body are eminent scientists not exceeding nine in number to be appointed by the President; there is none outside the Government in the Governing Body. Rule 98 makes it abundantly clear that the Rules of the Society can neither be altered nor amended except with the sanction of the Government of India. Rule 100 shows that the Rules became operative after they were approved by the Government of India. The audited accounts of the Society along with the auditor's report thereon were to be placed before the Society at its Annual General Meeting and also on the table of the Houses of Parliament. Rule 18 provides that the appointment to various posts under the Society shall be made in accordance with the Recruitment Rules framed for the purpose by the Governing Body with the prior approval of the Government of India. The administrative and the financial control of the Government is all pervasive. The rules and bye-laws of the Society can be framed, amended or repealed only with the sanction of the Government of India. [219 E-F; 220 B-F] Sabhajit Tewary v. U.O.I. [1975]3 SCR 616 distinguished and limited and U.P. Warehousing Corporation v. Vijay Narain [1980] 3 SCC 459, referred to.

3. The guarantee of equality in all its pervasive character enables this Court to remove discrimination and to restore fair play in action. [226 C] The instant case, is a glaring example of discriminatory treatment accorded to old experienced and highly qualified hands with an evil eye and unequal hand. No attempt was made to sustain the scales of pay for the post of Professor on the doctrine of classification because the classification of existing incumbents as being distinct and separate from newly recruited hands with flmsy change in essential qualification would be wholly irrational and arbitrary. The case of the petitioners for being put in the revised scale of Rs. 1100-1600 from the date on which newly created posts of Professors in sister disciplines in IVAI and other institutes were created and filled in revised scale is unanswerable and must be conceded [226 B-D] Randhir Singh v. U.O.I. [1982] 1 SCC 618, referred to.

4. The moment the High Court held that it had no jurisdiction to entertain he writ Petition, it became functus officio and therefore, its decision on the merit 204 of the contention is of no consequence and at any rate could not conclude the matter. Now that it has been held that the writ petition is maintainable on the finding that ICAR and its affiliates are other authority within the meaning of the expression in Article 12, justice demands that the court must examine the contentions on merit. The preliminary objection over-ruled and the review petition allowed. [229 F-G]

5. It is well-settled that experience to be of value and utility must be acquired after the educational qualification is obtained and not while acquiring the postgraduate qualification. [232 A] In the instant case, preparing thesis after graduation for acquiring post graduate degree would not count towards prescribed experience qualification. In the case of Ph.D degree awarded on research the situation may be different.

[232 B]

6. The Court must look with respect upon the performance of duties by experts in their respective fields.

However, the task of ushering a society based on rule of law is entrusted to this court and it cannot abdicate its functions. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification pertaining to experience, the entire process of selection of the 6th respondent was in contravention of the established norms prescribed by the advertisement and power of the Selection Committee and procedure for fair and just selection and equality in the matter of public employment and to rectify resultant injustice and establish constitutional value this Court must interfere. [234 D-E] State of Bihar v. Dr. Asis Kumar Mukherjee [1975] 2 SCR 894, referred to.

In the instant case, the first Selection Committee examined the suitability of seven candidates including the petitioner and specifically recorded its finding that none of the candidates interviewed or considered in absentia including respondent No. 6 who was selected at a later stage, fulfilled all the essential qualifications laid down for the post. The Committee recommended that the post be re- advertised after amplifying the essential qualification in the matter of experience, viz. 10 years research experience in the field of protein Chemistry'. The post was the post of Senior Bio-chemist. Initially experience required was in the field of Nutrition with particular reference to quantity and quality of protein in food grains as evidenced by published work while the amplified essential qualification was research experience in the field of protein Chemistry. It is difficult to efface the impression that the amplification was done keeping in view the qualification which respondent No. 6 had. Moreover respondent No. 6 appeared not to carry on research in the line of Nutrition or protein Chemistry and therefore he did not fulfill the qualification at all and he could not therefore have even been called for interview by the Selection Committee. The Selection Committee also did not have the power to relax the essential qualification, for the post. The selection of respondent No. 6 is contrary to rules and orders and in violation of prescribed norms. He was ineligible for the post when selected and his selection and appointment has to be quashed and set aside. [230 C-G, 233 E-F, 234F]

7. The High Court was clearly in error in observing that either Dr. Raman (petitioner in R.P. No. 80/76) was not hopeful of getting the job or he had some other reasons for not applying for the same and therefore his grievance cannot 205 be entertained. This is clearly contrary to record. He had applied earlier and was entitled to be called for interview as noted in the proceedings. It was obligatory upon the second Selection Committee to inform him to appear for the interview and adequate steps should have been taken to give the intimation because he was attached to the institute and was in active service of the institute and intimation to him would not require any herculean effort on the part of the Committee. But he has been assessed thrice by the Assessment Committee for promotion to S-3 grade and found, wanting. The Institute shall set up a special Assessment Committee to assess his suitability for promotion to S-3 grade by examining his work from 1976. He is not entitled to any further relief. [239 G-240A, 241 E]

8. A combined reading of Rules 13 and 14, indicate that, it is open to the Agricultural Scientist Recruitment Board to prescribe minimum marks which the candidates must obtain at the written test before becoming eligible for viva-voce test. After the candidate obtains minimum marks or more at the written test he becomes eligible for being called for viva-voce test, and he has to appear at the viva- voce test. Neither Rule 13 nor Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candidate at the viva-voce test. The language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva-voce test and the final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva-voce examination. [244 D-F] In the instant case, (CA No. 1043/81) the additional qualification which ASRB prescribed to itself that the candidate must have a further qualification obtaining minimum marks in the viva-voce test does not find place in Rules 13 and 14. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irrepearable and irreversible harm. Once an additional qualification of obtaining minimum marks at the viva-voce test is adhered to, a candidate who may figure high-up in the merit list was likely to be rejected on the ground that he has not obtained minimum qualifying marks at viva-voce test. This list prepared in contravention of the Rules cannot be sustained. However, it is not possible at this late stage to reject the entire selection and it would be equally improper to disturb the selection of those who had been selected and appointed way back in 1978. If there is a vacancy and if the appellant comes within the zone of selection on the aggregate of marks obtained by him, his case shall be considered for appointment prospectively and not retrospectively. [244 G-H; 245 C; 246 D; G]

ORIGINAL JURISDICTION : Writ Petition No. 587 of 1975 (Under article 32 of the Constitution) with Review Petition No. 4 of 1977 (@SLP (Civil) No. 2339 of 1975 & Review Petition No. 79/76) 206 and Review Petition No. 80 of 1976 (Arising out of SLP (Civil) No. 702 of 1976) and Civil Appeal No. 1043 of 1981 Appeal by Special leave from the Judgment and Order dated the 8th May, 1980 of the Delhi High Court in Civil Writ Petition No. 553 of 1980.

Yogeshwar Prasad and Mrs Rani Chhabra for the Petitioner in WP. 587/75 & RP. No. 4/77 M.G. Ramachandran for the Appellant in CA. No. 1043 of 1981.

Abdul Khader, Miss A. Subhashini and Girish Chandra for the Respondent in WP. 587/75.

K.G. Bhagat, Addl. Sol. General and Ms. A. Subhashini for the Respondent in RP. No. 4/77 D. Goburdhan and C.V. Subba Rao for Respondent in CA. No. 1043 of 1981.

B.N. Lokur, and C.N. Ratnaparkhi for Respondents 2-7 in WP No. 587 of 1975.

Judgment of the Court was delivered by DESAI, J. In this group of writ petition, civil appeal, special leave petition and review petitions; a common question of law is raised whether Indian Council of Agricultural Research (`ICAR for short) and its affiliate.

Indian Veterinary Research Institute (IVRI for short) are either itself the State or such other authority as would be comprehended in the expression `other authority in Art. 12 of the Constitution ? Re: W.P. No: 587/75 :

Petitioner No. 1 was Professor of Animal Pathology, petitioner No. 2 was Professor of Animal Genetics and petitioner No. 3 was 207 Professor of Veterinary Parasitology, all attached to IVRI.

Six posts of Professors one each in Animal Pathology, Animal Genetics, Veterinary Parasitology, Animal Nutrition, Bacteriology and Physiology were created on the introduction of the post-graduate wing in IVRI in 1958. At the relevant time the post of Professor carried the scale of Rs. 700- 1250. Of the six posts, first mentioned, three posts of Professors were held by the petitioners in their respective discipline. On the introduction of the scales recommended by the University Grants Commission, the pay scale attached to the post of Professor in IVRI was revised to Rs. 1100-1600.

After the upward revision during the year 1970-71, the cadre of Professors in IVRI was expanded by creating six new posts of Professors in various disciplines. Surprisingly, act of the petitioners, who was already holding post of Professor, was not given the benefit of the upgraded scale attached to the post of Professor while on the other hand the new incumbent recruited in the newly created posts in the year 1970-71 were awarded the revised scale of Rs. 1100-1600.

This led to the disturbance in the inter se seniority in the cadre of Professors and manifested an anomalous position that the old incumbents of the posts of Professors such as petitioners, continued in the pre-revised scale of Rs 700- 1250 while the new incumbents were put in the revised scale of Rs 1100-1600 both having the designation of Professor and there is no appreciable difference in the qualifications attached to the post. When this was brought to the notice of the authorities concerned, the ICAR with the concurrence of the Ministry of Finance resolved as per decision dated April 6, 1972 to award the revised scale of pay attached to the post of Professor to the petitioners, but this was subject to the condition that it would not be automatic but the existing incumbents of posts may be considered for revised scale along with other suitable persons. It was implicit in the condition prescribed that the petitioners will have to stand in competition with others applications, if there be any, and go through the hazard of a fresh selection for the post each one was already holding. This is the first grievance voiced by the petitioners in the writ petition contending that the petitioners were qualified for the posts of Professor and that each of them was holding the post from 1963, 1970 and 1970 respectively. The petitioners made various representations basing their claim inter alia on fair play, equality of opportunity in the matter of public employment and equal pay for equal work as well as the provision contained in Fundamental Rule 23. The petitioners also contend that they fulfil the minimum qualification prescribed for the post after upward revision of the pay- scale, and they have the requisite experience and that they are performing the same or identical duties 208 as are being performed by newly recruited Professors in sister disciplines and that denial to them of the revised pay scales for the post of Professor apart from being discriminatory and violative of Art. 14 is thoroughly arbitrary and unjustified. It appears that pursuant to the decision dated April 6, 1972, the ICAR issued an advertisement on May 21, 1974 inviting applications for the post of Professor in Animal Pathology, Animal Genetics and Veterinary Parasitology in the revised scale of Rs. 1100- 1600. These were the posts already held by petitioners. The advertisement set out the essential and desirable qualifications for each post. Petitioners contend that the duties pertaining to the post of Professor in the upgraded scale are the same as performed by the petitioners and that this action of inviting fresh applications for post already held by the petitioners disclosed a cover attempt to remove the petitioners from the posts held by them for years.

Petitioners further contend that only three posts held by the petitioners have been advertised inviting the applications for fresh recruitment while there were others who were holding posts of Professors in the pre-revised scale and to whom benefit of automatic upward revision was granted and this disclosed not only the bias of the ICAR but also subjected the petitioners to gross discrimination.

Serious allegations of bias and malafide have been made against respondent No. 6, the Director of IVRI, and Director General of ICAR, which need not be set out here. It may, however, be stated that though the various functionaries working in IVRI and ICAR are highly qualified persons, professional rivalry had led to such poisoning of the atmosphere and character assassination had become so rampant and the environment had become so suffocating that the Government of India had to appoint a Committee presided over by late Shri P.D. Gajendragadkar, retired Chief Justice of the Supreme Court with wide terms of reference which amongst others included the recruitment and personnel policies of ICAR as well as Institutes and Centres working under it and to suggest measures for their improvement. It is alleged that absolutely incorrect, improper and prejudiced entries are made in confidential reports with a view to harming the career of the persons who have fallen from the grace of the Director and that therefore, the Court should lift the veil of the so-called society and peep into the realities of life. The petitioners accordingly prayed for an appropriate writ, order or direction to quash the advertisement dated May 21, 1975 inviting applications for the posts of Professors in three subjects already held by the petitioners and to confirm the petitioners in the aforementioned posts and to give them the benefit of the revised scale from the date from which it was given to Professors in sister disciplines and to quash 209 the adverse entries in the confidential reports of the three petitioners. On these averments petitioners filed the present writ petition under Art. 32 of the Constitution.

Re : S.L.P. No. 2339/75 with R.P. No. 4/77 :

One Dr. Y.P. Gupta filed Writ Petition No. 276 of 1972 in the High Court of Delhi questioning the correctness of the order removing him as member of the faculty of the post- graduate school of Indian Agricultural Research Institute (IARI for short). Petitioner Dr. Gupta also questioned the validity of appointment of Dr. S.L. Mehta respondent No. 6 in the High Court to the post of Senior Bio-chemist in IARI and claimed that he was entitled to be appointed to that post. This petition was resisted by the respondents primarily on the ground that neither ICAR not IVRI is either a State or other authority within the meaning of the expression in Art. 12 of the Constitution. When the matter came up before the Division Bench of the Delhi High Court, a direction was given that in view of the importance of the questions that arise for determination in the writ petition before the court and in view of the various decision which have to be reconciled, the petition should be heard by a larger Bench. Pursuant to this direction, the matter came up before a Bench of five Judges. The larger Bench formulated four questions for its considerations :

"1. Do the petitioners have legal right to challenge the appointment of respondent 6 ?

2. Has the Director-General of the ICAR acted in contravention of any legal obligation in making the appointment of respondent 6 ?

3. Has the said appointment vitiated by the mala fides of Dr. Swaminathan and/or of Dr. Naik ?

4. Was it bad because of the want of qualifications of Dr. Mehta or non-compliance with the prescribed procedure in making it ?" The court answered the first question against the petitioner holding that ICAR is a society registered under the Societies Registration Act and it is neither a State nor other authority within contemplation of Art. 12 of the Constitution. The court further held that 210 the relation between the petitioner and ICAR is governed by a contract and the rules and the bye-laws of the Society and ICAR was free to fill in the post of Senior Biochemist in any manner it liked. The court observed that the petitioner being a mere employee, he has no legal right against the employer and in the absence of any statutory element governing his employment, the relation is governed purely by a contract and a breach of contract, if any, would not permit a declaration in favour of the petitioner. Briefly, the court held that the remedy by way of writ is not available against ICAR, On the second question the court held that the Director-General owed no obligation or legal duty in making the appointment of the sixth respondent which can be enforced by a writ petition. Questions Nos. 3 and 4 were dealt together and it was held that the pleadings were inadequate to permit a finding of mala fide and in the absence of proof there is nothing to show that the appointment of the sixth respondent was vitiated either by mala fides or by non-compliance with procedure. Consistent with these findings, the writ petition of Dr. Gupta was dismissed. Simultaneously, the writ petition filed by one Dr. T.S. Raman being Writ Petition No. 669/72 was dismissed by the common judgment.

Dr. Y.P. Gupta filed S.L.P. No. 2339 of 1975 in this Court. On October 6, 1975, this Court directed a notice to be issued to the respondents to show cause why special leave to appeal should not by granted. When the matter came up again before this Court on July 21, 1976, Mr. Lokur, learned counsel appearing for the ICAR stated to the Court that the respondent-council would consider the question of taking back the petitioner as a member of the postgraduate faculty of IARI. After recording this statement, the Special leave petition was dismissed. Petitioner Dr. Gupta filed Review Petition No. 79 of 1976 requesting the Court to review its order dismissing the special leave petition. This review petition was rejected on October 27, 1976. As second review petition was not barred at the relevant time, Dr. Gupta filed Review Petition No. 4/77 which is directed to be heard in the present group of appeal, writ petition and special leave petition.

Re : R.P. No. 80 of 1976.: Dr. T.S. Raman whose Writ Petition No. 669 of 1972 was heard along with Writ Petition of Dr. Gupta and which was also dismissed by the common judgment, filed Special Leave Petition No. 702 of 1976 in this Court. This petition was dismissed by the Court on August 30, 1976. Dr. T.S. Raman filed Review Petition No. 80 of 1976 which is being heard in this group.

211 Re: C.A. No. 1043/81: Appellant Dr. Om Prakash Khauduri filed Writ Petition No. 553 of 1980 in the High Court of Delhi alleging that he was selected for the post of Senior Computer with Indian Agricultural Statistics Research Institutes, and affiliate of ICAR. ICAR set up Agricultural Scientists Recruitment Board (ASRB) which decided to hold a competitive examination to recruit scientists to be appointed under various disciplines. ICAR framed rules setting out the terms and conditions for admission to the competitive examination. Appellant applied for admission to the competitive examination in 'Agricultural Statistics' discipline. The written test was held from 1st to 4th February, 1978. The Board incharge of the selection and appointment on the comparative merits as evidence by the performance in the written examination selected 20 candidates including the appellant as having obtained the prescribed qualifying marks for the purpose of viva voce examination which was held on April 10th and 11th, 1978.

After the viva voce test, 13 candidates were declared as successful and were offered appointment as scientists in the discipline 'Agricultural statistics'. The appellant failed to qualify for the same. According to the appellant, 21 vacancies remained unfilled. Appellant contends that he had secured 364 marks out of 600 in the written examination and 38 marks out of 100 in the viva voce test. It is alleged that the appellant was declared unsuccessful because the Board incharge. of the examination has by itself determined without any authority that anyone who obtained less than 40 marks at the viva voce examination would not be eligible for selection for the posts. It is therefore, contended that the action of the Board in fixing minimum qualifying marks in the viva voce examination and basing the final selection on this arbitrarily fixed criterion lacks both the authority of law and rules and that the Board has acted arbitrarily and without the authority of law. Appellant accordingly made representations but failed to evoke a sympathetic reply, and therefore, the appellant filed a writ petition in the High Court of Delhi which was dismissed in limine on the ground that the writ petition against the respondent was not maintainable. Hence this appeal by special leave.

Ordinarily one would sincerely deplore the delay in disposal of a problem brought before the Court; but occasionally, one comes across a case in which the sheer passage of time and the fast removing scenario of changing pattern of law resolves the dispute to some extent.

Mr. Lokur appearing for ICAR raised a preliminary objection 212 that ICAR is not an agency or instrumentality of the State and therefore it is not comprehended in the expression 'other authority' within the meaning of the expression in Art. 12 of the Constitution and therefore the High Court were fully justified in throwing out the petition at the threshold. Mr. Lokur directed a frontal attack drawing sustenance from the decision of Delhi High Court that ICAR being a Society registered under the Societies Registration Act and being neither a State nor other authority within the contemplation of Art. 12 nor an instrumentality of the State, writ jurisdiction of the High Court cannot be invoked against it. Sabhajit Tewary v. Union of India & Ors was the sheet anchor of Mr. Lokur's extensive submissions because in that case a Constitution Bench presided over by the then Chief Justice ruled that the Council of Scientific and Industrial Research, a Society registered under the Societies Registration Act, was neither a State nor other authority within the contemplation of Art. 12 and therefore, the writ petition was held not to be maintainable against it. And even though this matter had become part-heard in 1980 and the hearing was resumed in 1983 before a different Bench, the vigour of the sustained attack was not the least dimmed even though the law expanding the width and ambit of the expression 'State' and 'other authority' in Art. 12 had taken strides culminating in Ajay Hasia etc. v. Khalid Mujib Sehravardi & ors. etc.(2) And Mr. Lokur continued his submission with unabated fury even though the learned Solicitor General Shri K. Parasharan appearing for the Union of India fairly conceded that in view of the circumstances disclosed in the case and the trend of the decisions, it is not possible to contend that ICAR and its affiliates IVRI and IARI would not be other authority being instrumentalities of the State and against which writ jurisdiction could be invoked.

A very brief resume of the history of ICAR commencing from its initial set up and its development into its present position would show that as a matter of form, it is a society registered under the Societies Registration Act but substantially when set up it was an adjunct of the Government of India and has not undergone any note worthy change. On the advent of the provincial autonomy under the Government of India Act, 1919, 'agriculture' and 'animal husbandry' came under the heading 'transferred subject' with the result that they came within the exclusive jurisdiction of the Provincial Government. Development of agriculture and research in agriculture 213 became the responsibility of the Provincial Government. Even then a Royal Commission on agriculture was constituted in 1926 to enquire into the agricultural set up and the rural economy of the country and to make recommendations to consider what firm steps are necessary to be taken by the Central Government in this behalf The Commission in its report recommended the setting-up of Imperial Council of Agricultural Research. Acting upon this recommendation, Government of India sent a telegram to the Secretary of State On April 24, 1929 informing the latter that the process of setting up of the Council is under way and that when set up Council would be a Society. On May 9, 1929, Secretary of State approved the proposal of the Government of India subject to variations mentioned therein. By its Resolution dated May 23, 1929, the Central Government directed that Imperial Council of Agricultural Research should be registered as a Society under the Registration of Societies Act, XXI of 1860. The Resolution further provided that with respect to the grant to be made to the Council to meet the cost of staff, establishment etc., the Government of India decided that for reasons of administrative convenience, it should be in the same position as a department of the Government of India Secretariat. The Imperial Council of Agricultural Research was set up in June 1929. A direction was also given that the research institutes were to be maintained by the Council. In their counter-affidavit filed in the High Court of Delhi it was conceded in paragraph 27 that the Imperial Council of Agricultural Research should in future be an attached office and not the department of the Government to be entirely manned by Government-staff and the secretariat staff of the Council was to be paid from the grant to be given by the Government for its administration and they would be Government servants and the Secretariat would be department of the Government of India. In July, 1929, ICAR was registered as a Society with its office in the Secretariat as an attached office of the Secretariat. By the Resolution dated August 4, 1930, Government of India directed that for reasons of administrative convenience "the Governor-General in Council has now, decided that the Imperial Council of Agricultural Research Department, as the Secretariat of the Council will henceforth be designated, should be a regular department of the Government of India Secretariat under the Hon'ble Member incharge of the Department of Education, Health and Lands". A note was submitted on December 29, 1937 to the then Viceroy concerning the status and position of the ICAR as a Department of the Government in which it was recommended that ICAR should not only be maintained as a distinct entity independent of the Government of India and with a view to achieving 214 this position, the office of the ICAR should not in future be a Department of the Government of India but should be an attached office. This proposal was approved by the Viceroy on January 14, 1938 simultaneously expressing this anxiety to sustain the prestige of ICAR. The next step is one taken by the Resolution dated January 5, 1939 by which the Government of India modified the status of the ICAR from the Department of the Secretariat to one of an attached office of the Government of India. A letter was addressed to the High Commissioner for India in London on January 14, 1939 intimating to him that the Secretariat of the ICAR will cease to be a department of the Government of India and will be an attached office under the Department of Education, Health and Lands with effect from January 15, 1939. Till then recruitment to various posts in ICAR was made through Federal Public Service Commission and this was to be continued even after the change in the status of ICAR as an attached office as evidenced by the letter dated August 24, 1938 by the Joint Secretary to Government or India to the Federal Public Service Commission. A bill was introduced in the Central Legislature styled as the "Agricultural Produce Cess Bill, 1949". The statement of object and reasons accompanying the bill recited that the Central Government have provided grants to the tune of Rs.84 lakhs for the expenditure of the Council and took notice of the fact that the Council has practically no source of income other than the contribution from the Central Revenue which may be unstable depending upon the state of finances of the Central Government. It was further observed that in order to place Council on a more secured financial position it has been decided to levy a cess at the rate of 1/2% on the value of certain agricultural commodities and the proceeds for the proposed cess are estimated to amount in a normal year to about Rs. 14 lakhs. The bill was moved. In the debate upon the bill, a statement was made on behalf of the Government of India that the Central Legislature will retain its full right of interpellation and of moving resolutions and will still vote on the grant of the permanent staff, and some of the activities of the Council. In other words, an assurance was given that the Central Legislative Assembly will have positive control over the affairs of the Council to the some extent and degree when it was a Department or an attached office of the Government of India. On the advent of independence. The Imperial Council of Agricultural Research.

With effect from April 1, 1966, administrative control over IARI and IVRI and other institutes was transferred to ICAR simultaneously placing the Government staff of the institutes at the disposal of ICAR as on foreign service.

This is evidenced by a communication dated 215 April 19, 1966 addressed by the Ministry of Agricultural, Food, Community, Development and Cooperation to the Directors of central Research Institutes. An option was given to the members of the staff of the Institutes, administrative control of which was transferred to ICAR and the date for exercising the option was extended by the communication dated November 9, 1966. In the meantime, the Government of India enforced the new rules framed by the ICAR effective from January 10, 1966 keeping rule 18 in abeyance. With the change in the status of the ICAR, Department of Agricultural Research and Education ('DARE' for short) was set up in the Ministry of Agriculture and it came into existence on December 15, 1973. This Department was set up with a view to providing necessary Government linkage with ICAR. The major function of the Department was to look after all aspects of agricultural research and education involving coordination between Central and State agencies; to attend to all matters relating to the ICAR; and to attend to all matters concerning the development of new technology in agriculture, animal husbandry and fisheries, including such functions as plant and animal introduction and exploration, and soil and land use survey and planning.

By this very Resolution, the Director General of ICAR was concurrently designated as Secretary to Government of India in the DARE. The position of ICAR was clarified to the effect that in the reorganised set-up, the ICAR will have the autonomy essential for the effective functioning of a scientific organisation and deal. with sister Departments the Central Government, with State Governments and also with international agricultural research centers through the DARE. Rule 18 of the ICAR rules which was kept in abeyance on January 10, 1966 was brought into operation in its entirety effective from April 1, 1974 as per communication dated March 30, 1974 by the Ministry of Agriculture to the Secretary, ICAR The consequence of Rule 18 becoming operative was that the Secretariat of ICAR ceased to be an attached office of the Ministry of Food and Agriculture and the Society shall function as 'wholly financed and controlled by the Society'. This last sentence hardly makes any sense. Till Rule 18 was kept in abeyance, recruitment to ICAR was done through the Union Public Service Commission as evidenced by the letter dated August 24, 1938 of the Government of India to the Secretary, Federal Public Service Commission, Simla. Rule 18 as stated earlier became operative from April 1, 1974. Rule 18 provides that 'the Society shall establish and maintain its own office, Research Institutes and Laboratories. The appointment to the various posts under the Society's establishment was to be made in accordance with the Recruitment Rules framed for the purpose 216 by the governing body with the approval of the Government of India".

Apart from the criteria devised by the judicial dist the very birth and its continued existence over half a century and it present position would leave no one in doubt that ICAR is almost an inseparable adjunct of the Government of India having an outward form of being a Society, it could be styled as a Society set up by the State and therefore, would be an instrumentality of the state.

ICAR started as a Department of the Government of India having an office in the Secretariat even though it was a Society registered under the Societies Registration Act. It was wholly financed by the Government of India. Its budget was voted upon as part of the expenses incurred in the Ministry of Agriculture. Even when its status underwent a change, it was declared as an attached office of the Government of India. The control of the Government of India permeates through all its activities and it is the body to which the Government of India transferred Research Institutes set up by it. In order to make it financially viable, a cess was levied meaning thereby that the taxation power of the State was invoked, and the proceeds of the tax were to be handed over to ICAR for its use. At no stage, the control of the Government of India ever flinched and since its inception it was setup to carry out the recommendations of the Royal Commission on Agriculture. In our opinion, this by itself is sufficient to make it an instrumentality of the State.

It was however urged that The Council of Scientific and Industrial Research (CSIR' for short) a society registered under the Societies Registration Act and having an identical set up as well as constitution, was held not to be an instrumentality of the State or 'other authority' under Art.

12. In Sabhajit Tewary's case, this Court held that the CSIR did not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation, and it was a society incorporated in accordance with the provisions of the Societies Registration Act. The fact that the Prime Minister is the president or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will not according to this Court establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and industrial research, the institution and financing of specific researches, establishment of development and assistance to special institions 217 for scientific study of problems affecting particular industry in a trade, the utilisation of the result of the researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible manner, and these aspects are not sufficient to reach the conclusion that the Society was an agency or instrumentality of the Government. This Court also referred to some decisions which have held that the companies incorporated under the Companies Act and the employees of these companies do not enjoy the protection available to Government servants as contemplated in Art.

311. This Court accordingly concluded that CSIR is not an instrumentality of the Government comprehended in the expression 'other authority' within the meaning of Art. 12 of the Constitution and the writ jurisdiction cannot be invoked against it. Much water has flown down the Jamuna since the dicta in Sabhajit Tewary's case and conceding that it is not specifically overruled in later decision; its ratio is considerably watered down so as to be a decision confined to its own facts. The case is wholly distinguishable on the facts apart from the later indicia formulated by the Court for ascertaining whether a body is 'other authority' within the meaning of Art. 12. A mere comparison of the history of ICAR as extensively set out herein before and the setting-up of CSIR would clearly show that ICAR came into existence as a department of the Government, continued to be an attached office of the Government even though it was registered as a society and wholly financed by the Government and the taxing power of the State was invoked to make it financially viable and to which independent research institutes set up by the Government were transferred. None of these features was present in the case of CSIR and therefore, the decision in Sabhajit Tewary's case would render no assistance and would be clearly distinguishable.

The ratio, if any, of the decision in Sabhajit Tewary's case was examined by a Constitution Bench of this Court in Ajay Hasia's case and it was held that that decision is not an authority for the proposition that a society registered under the Societies Registration Act, 1860 can never be regarded as an authority within the meaning of Art. 12. The Court further held that having regard to the various features enumerated in the judgment in Sabhajit Tewary's case, the conclusion was reached that the CSIR was not an agency of the Government, but the Court did not rest its conclusion on the sole ground that CSIR was a Society registered under the Societies Registration Act, 1860, and on the contrary proceeded to consider various other features of the Council for arriving at the conclusion that it was not an agency of the Government and therefore, it was not an authority for the 218 proposition that a society registered under the Societies Registration Act for that reason alone would not be comprehended in the expression 'other authority'. In Ajay Hasia's case, this Court after taking note of the decisions in Ramana Dayaram Shetty v. The International Airport of India & Ors.(1) and U.P. Warehousing Corporation v. Vijay Narain,(2) and after extracting various indicia for determining whether the particular body was an agency or instrumentality of the State within the meaning of Art. 12, proceeded to examine whether the society which had established Regional Engineering College, Srinagar and which was registered under the Jammu & Kashmir Registration of Societies Act, 1898 was an instrumentality or agency of the State and would be comprehended in the expression 'other authority' in Art. 12. In this connection the Court observed as under:

"It is in the light of this discussion that we must now proceed to examine whether the Society in the present case is an "authority" falling within the deintion of "state" in Article 12. Is it an instrumentality or agency of the Government? The answer must obviously be in the affirmative if we have regard to the Memorandum of Association and the Rules of the Society. The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu & Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments. The Rules to be made by the Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction. The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the Society can be disposed 219 of in any manner without the approval of both the Governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is in charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominees of the State and the Central Governments. It will thus be seen that that State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the Society and it would not be incorrect to say that the Society is merely a projection of the State and the Central Governments and to use the words of Ray, C.J. in Sukhdev Singh's case (supra), the voice is that of the State and the Central Governments and the hands are also of the State and the Central Governments. We must, therefore, hold that the Society is an instrumentality or agency of the State and the Central Governments and it is an 'authority' within the meaning of Art. 12." Applying the criteria, there is little doubt that ICAR is an instrumentality or the agency of the State. It came into existence as an integral department of the Government of India and later on became an attached office of the Central Government. The composition of the ICAR as evidenced by Rule 3 could not have been more governmental in character than any department of the Government. The Governing Body of the Society would consist of a President of the Society, who is none other than the Cabinet Minister of the Government of India for the time being in-charge of Agriculture; the Director-General, a distinguished scientist to be appointed by Government of India would be the Vice-President and the Principal Executive Officer of the Society. He is concurrently appointed as Secretary to Government of India.

Other members of the Governing Body are eminent scientists not exceeding nine in number to be appointed by the President that is the Minister; not more than five persons for their interest in agriculture to be appointed by the President that is the Minister, three members of Parliament and Additional Joint Secretary to the Government of India in the Department of Agriculture to be nominated by that Department, one person, appointed 220 by the Government of India to represent the Central Ministry/Department concerned with the subject of Scientific Research and the Financial Adviser of the Society. There is none outside the Government in the Governing Body. Rule 91 deals with the finances and funds of the Society and the sources of income are the cess levied by the Government under the Agricultural Produce Cess Act and the recurring and non-recurring grants from the Government of India. The Rules of the Society were initially framed by the Government of India and Rule 98 makes it abundantly clear that they can neither be altered nor amended except with the sanction of the Government of India. Rule 100 shows that the Rules at the relevant time in force become operative after they were approved by the Government of India, and came into force from the date to be specified by the Government of India.

Rule 93 provides for audit of the accounts of the Society by such person or person as may be nominated by the Central Government. Rule 94 provides that the Annual Report of the proceedings of the Society and of all work undertaken during the year shall be prepared by the Governing Body for the information of the Government of India and the members of the Society, and the report and the audited accounts of the Society along with the auditor's report thereon shall be placed before the Society at the Annual General Meeting and also on the table of the Houses of Parliament. Rule 18 provides that the appointment to the various posts under the Society shall be made in accordance with the Recruitment Rules framed for the purpose by the Governing Body with the prior approval of the Government of India but prior thereto it was by the Union Public Service Commission. The administrative and the financial control of the Government is all pervasive. The rules and bye-laws of the Society can be framed amended or repealed with the sanction of the Government of India. The case before us is much stronger than the one considered by this Court in the case of Ajay Hasia and therefore, the conclusion is inescapable that the Society is an instrumentality or agency of the Central Government and therefore, it is 'other authority' within the meaning of the expression in Art. 12. As a necessary corollary the writ jurisdiction can be invoked against it and therefore the decision of Delhi High Court must be reversed on this point. The preliminary objection is accordingly overruled.

Having rejected the preliminary objection, we must now proceed to examnine the contention raised in each petition and appeal on merits.

Before we proceed to examine the contentions on merits, 221 unhappy though it may appear to be, and howsoever one would like to avoid reference to it, it is inevitable that one must take note of the deplorable state of affairs in the administration of the affairs of ICAR and the uncongenial atmosphere in which the highly qualified agricultural scientists in this country have to work. ICAR was set up for undertaking Scientific Research in Agriculture, Animal Husbandry and allied subjects on which the entire economy of this country revolved till the advent of industrial revolution. It was set up with a view to imparting speed and momentum to research in agriculture and allied subjects so that the country may move from the middle ages to the modern methods in agricultural technology. Unfortunately, since its inception, the domestic atmosphere has not proved congenial to the flowering of the genius of the country's best talent in agricultural research. This came to light when on May 5, 1972, newspapers all over the country flashed the tragic news that a young agricultural scientists, Dr. V.H. Shah, who was working as Senior Agronomist and Associate Project Coordinator in the IVRI had committed suicide by hanging himself in his residence the previous night. There was a commotion in the Parliament and during the debate in the House, Members of Parliament regretfully referred to previous suicides committed by agricultural scientists, one such being of Dr. M.T. Joseph, Teaching Assistant, Division of Entomology, IARI who had committed suicide on January 5,1960. These were not stray incidents but the outcome of persecution, torture and harassment emanating from the polluted environment in ICAR and its affiliates. The then Minister for Food and Agriculture stated in the Parliament that the Government of India was not happy with the procedure of selection of personnel in the ICAR and proceeded to inform the House that they have not been too happy with the present system of recruitment which necessitates a scientist applying for posts and being interviewed by selection committees throughout his working career because the system inevitably provides frequent occasions for disappointment leading to frustration. Two decades thereafter we are constrained to note that the things have not improved at all. The ICAR and the Institutes seem to be so backward looking in their approach to the members of the staff that as late as in 1983 considerable time of this Court was frankly wasted in disposing of the preliminary objection on behalf of the ICAR that it is not amenable to this Court's writ jurisdiction which would imply that they have skeletons to hide and shun their exposure to the Court's examination of the internal affairs. To continue the narrative, a committee was appointed under the Chairmanship of Shri P.B. Gajendragadkar, retired Chief Justice of India and Vice-Chancellor, University of 222 Bombay and at the relevant time Chairman, Law Commission with wide terms of reference inter alia to enquire into the recruitment policies of ICAR and to review the recruitment and personnel policies of ICAR. Institutes and Centres working under it and to suggest measures for their improvement. This Committee submitted its Report and we take note of only one of its findings which reads as under:

"All these complaints have been echoed by several scientists who met the Committee. In the opinion of the Committee these complaint have some substance. The Panel of Advisers also hold the same opinion. The Committee is of the view that most of these complaints are due to improper working conditions in the Divisions. A scientist belongs to a Division where he carries out his work. The atmosphere in the Division and the Institute should be conducive to research activity."(3) (emphasis supplied) At another stage, the Committee has observed that: 'in the present circumstances where a crisis of character and confidence seems to have overtaken the entire administration of the ICAR, we think it is absolute necessary that recruitment of personnel in all the Institutes will the ICAR should revert to the UPSC '. The Committee made it clear, it made this recommendation, because it was satisfied that there is obvious dissatisfaction with the recruitments made from 1966 onwards and the Report when browsed through would leave an ineffaceable impression on the redder that the Committee was dissatisfied with internal atmosphere in ICAR and that there was an amount of dissatisfaction about the recruitment policy and that it was such a perceived reality that it would be idle to ignore the same. Even the Director- General who is concurrently also the Secretary to the DARE in charge of ICAR conceded before the Committee that it would be better if for some time, the recruitment in entrusted to some outside agency.(2) In Chapter XI of the Report, the Committee noted that the complaints made against the Head of the Division about not giving adequate facilities for work and the lack of academic atmosphere and an absence of domestic approach permitting free discussion on research projects and results obtained were genuine and they required to be remedied. There is further 223 the