P.k.ramachandra IYER & Ors. v. Union Of India & Ors.

- revised scale—Defence of employer was there, was marginal revision in qualifications we

' Writ petition dismissed by High Court allowing preliminary objection that it had no

.P.K..RAMACHANDRA IYER & ORS.5 gs "UNION OF INDIA &,ORS._ ne | December 16, 1983 | Se oo a 1. A, Dusit & V. BALAKRISHNA ERADI, wd oe " Constitution of India, 1950 Articles 12 - and 32-<-Indian “Council of ; Agricultural Research—Whether instrumentality of Central Government-— Whether : a covered by the expression ‘other authorities’ —Whether amendable fo writ jurisdiction o ae

Articles £4, 16 and 49(d)—Pay seule of post of Pr ofessor revised—Existing incumbents not granted whe benefit of revised scale—New incumbents granted the for the post—Action whether diser. iminatory and unfair. ¢ ; ; ; ¥

" Article 16—Selection Conunittee— Whether has power 10 relax essential quali-

_ Jications for the post-jurisdiction of Courts to interfere . with ‘decision of Selection

Cominittce— When arises.

of

Malafides—-Selection Committce~ 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 . postgraduate qualification. .

“Indian Council of Agricultural Research 1977, Rules 13 ana 14 : Fixation of — - ws minimum qualifying marks for eligibility . for viva-voce test--Further fixation of aualifying marks to be obtained at yiva-voce fer final selection— Validity of.

~ Supre eme Court Rules 1966 Order XL & Constitution of India, 1950 Article 137:

ot jurisidiétion to entertain’ petition—High Court becoines functus officio and decision, .

on merits inconsequential—Supreme Court in later, case over-ruling the same pre- liminary objection—Siupreme Court | entitled. to examine matter on merits—Review " Petition smédntatnable : . s ;

- The Royal, Commission of Agriculture constituted in 1926 recommended

“the setting up of the Imperial Council of Agricultural Reséarch—ICAR. In July. .

1929, ICAR was registered as a Society with its office in. the Secretariat. --Jt was , sWholly 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, Secretariate to one of an attached office of the Government of India... Rec- tuitment 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

P K. IVER. UNION, 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 2 a cess was levied and the proceeds wete 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 cstablish and -'* maintain its own Office, Research Institutes and Laboratories and that the appoint- ments to the various posts should be made in acegrdance. with the Recruitment Rules framed by the Governing 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 bean attached office of the Ministry of Food and Agriculture.

The Indian Veterinaty- Research Institute was one of the. institutes under the adininistrative 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 Cominission, ‘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 awatded the revised _“pey-scales. This led to disturbance in the infer 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 minimun’ qualification®- prescribed for thé 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 behaif 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 -existinz-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 judg- .

; ment 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 Agiiculture 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 ofeach of the candidates, and _ , that, it would be unwise to substitute expert’s decision by Court’s decisions. . The

Writ Petition was dismtssed by the High Court on the ground that ICAR being

“He iH a! perigd of 3 months. [247 Bl

"202 ” 7 oo SUPREME court REPORTS - [1984] 2 S.C.R.

-a sdciety 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 i in any manner it liked, and that'as the petitioner was not removed from the membership of the Facility, but ceased to. be: a member, it was ‘not necessary * to hear him. ;

This Court upheld the decision of the High Court. by its indent in S.L,P.

: _ No. 2339/75 and also rejected R. B. No. 79/76,

_ The Petitioner in Revew J Petition No. 80/76 sought review of the judgment in s. LP, No. -702 of 1976 which was disposed of along with 8. L. P, No. 2339/1975. .

The appellant in C.A. No, 1043 of 1981 filed a writ petition i in the High Court alleging that he was selected for the post of Senior Computer in the Indian Agri-

* culture 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 exarnination in 1978 to recruit scientists. Selec- "tion 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 ¢ligile for being admitted in the merit list should also

“have the additional qualification of at least obtaining.40 marks in the viva-voec _ 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 atithority of law ; and ules. The High Court dismissed the Writ Petition in limine.

a a

‘ $ Allowing the Review Petitions, writ Petition aod Appesal :

“HELD : L. @ 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. ¥.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 ve 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

® ,

(ii) 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 $-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 matks obtained by them. If there “Isa vacancy and the appellant comes 8 within the zone of selection he shall be

P.K.IYERY. UNION © —~*«SB appointed. The appointment would be ‘prospective and would -be effective from the date of the appointment. [247 E-F]

2. Gi) 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 un inseparable adjunct of the Government of India having an outward form of being a Socidty. 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} . ‘ ‘ Sy

(ti) ICAR.came into-existence as an integral department of the Government of. India and liter 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 mm 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, nof exceeding nine in number to be appointed. by the President; there is none outside the Government in- the GoVeriing 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 Socicty

“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.L [1975}3 SCR 616 -distinguished and limited and,

‘U; P. Warehousing Corporation v.. Vijay. Narain [1980] 3 sce 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 fimsy change in essential . qualification would be wholly irrational and arbitrary. The case of the petitioners fot being. put in the revised scale of Rs 1100-1600 from the date on which newly created pasts of Professors in sister disciplines in IVRI and other institutes were created and filled in revised scale is unanswerable and must be conceded (226. B-D]

Randhir Singh \ v UO (1 982] 1 SCC 618, referred to,

4 The moment ‘the High Court held that it had no furisdiction to ebtertain he writ petition, it became functus officio and there‘ore, its decision on the merit

204, SUPREME COURT REPORTS _ [19843 2S.0.R. of the contention‘is of no consaqjuence and. at any rate could not concltide the | matter. Now that. it has been held that the writ: Petition is maintainable-on the finding that ICAR and its affiliates are other autliority witbin - the mea ning of the expression in Article 12, justice demands that the court must examine the con- ° tentions on merit. The preliminary objection over-ruled and ‘the Teview Petition _ allowed. [229 E-G} / 5 . It is well-settled that experience to'be of value and utility must be acquired’ after the educatonal qualification is obtained-and jot while acquiring the post- Graduate qualification. a 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. 2 society, based. ‘on rule of law is entrusted to this court and it cannot abdicate ‘its functions. Once’ it is mpst satisfoctorily established that the Selection Committee did not have the * power -to_ relax essential qualification pertaining to experience, ... the eritire 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 pro- | cedure for fair and just selection and equality in ‘the matter of public employment ~ and to rectify resultant injustice and- esiablish constitutional value this Court | must interfere. [234 D-E] vo oo

"State of Bihar vy. Dr. Asis Kumar Mulieree 11975 2 SCR 894, referred to.

In the instant case, the first Selection Committee examined. the suitability

__ of seven cendidates including the petitioner and specifically recorded its finding - _that none of the candidates.. interviewed or considered in absentia including tespondent 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 amplyfying 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. Initialy experience réquired was‘in the field of Nutrition with priticular reference to quantity and

'’ quality of protein in food grains as ‘evidenced by published work while the ampli-

* fied 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-te carry on research i in the line of. Nutrition or protein Chemistry ‘aod therefore he. did not fulfil: the qualification at all and he could not therefore have even been ¢alled 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. {230C-G, 233 EF, 234 F]*

1. The: High Court was’ clearly i in error in obse erving that either Dr. ‘Ramen (petitioner in R.P. No, 80/76) was not. hopeful of getting the job or he had some’. other reasons for not t applying for the same and therefore his grievance: cannot

—

BLK. IYER ¥. UNION c pF 205 be entertained.’ This is clearly contrary to record. ‘He had applied earlier and. . w.s entitled to be called- for interview as noted in the proceedings. It was obti-

. gatory upon the second ‘Selection Committee to inform him to appear for the. _ intervie and adequate steps should have been taken to give the intiniation’ “because "he was attached to the institute and was in active service of the institute and intima- tion to him would not require any herculeen ‘effort on the. part of the Committee.

- But he-has been assessed thrice by the Assessment Committee for promotion to |

$-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 enititled 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 Agricultutal Scientist Recruitment Board to prescribe minirnum marks which . the candidates must obtain at the written test before becoming eligible for viva-vocé 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 iva-voos 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. negatiyes any such power in the ASRB when it provides that after the, written test if the candidate has obtained oS 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 can-. - didate i 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 i in the viva-vace, test does not find place in Rules: 13 and 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 rales ts likely to cause irrepearable and itreversible harm. Once an additional qualifica- - tion 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 Tejected 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, itis 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. Uf 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 con: " sidered for appointment prospectively and not retropsectively. [244 G-H; 245C;

246 D; G]

“ORIGINAL JuRISpICTION : Writ Petition’ No. 587 of 1975 _ (Onder article 32 of the Constitution) - x ta

| with |

Review Petition No. 4 of 197 - (@SLP (Civil) No. 2339-of 1975: & . eo Review Petition No. 79176) : oT t

206. _ SUPREME COURT REPORTS, - {1984} 2 S.C.R.

and

; Review Petition No. 80 of 1976 _ (Arising ont 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 im Civil Writ Petition S

No. 553 of 1980...

; . Yogeshwar Prasad and: Mrs Rani Chhabra fe or the Petitioner i in . WP. 387/75 & RP. No. ATT

M.G. R amchandran for the Appellant in CA. No. 1043 of 1981,

' Abdul Khader, Miss Az * Subhashini and Girish Chandra for the .

. Respondent in WP. 387/75.

K. G. Bhaear. Adal. Sol: ‘General and Ms. A. Subliashini for the

Respondent j in RP. No, 4/77.

; "D.. Goburdhan and CV. Subba Rao “for Respondent in CA, ‘No. 1043 of 1981.

BN. ‘Lokur, and C.N. Ratnaparkhi for Respondents 2-7 in

“WP. No. 587 of 1975.

_ fudement of the Court was delivered by

‘Desat, J. In this group» Sof writ petition, civil ‘appeal, special leave petition and review petitions, a common question of law is raised. whether Indian Council of Agricultural Research CICAR for short) ° ‘and its affiliate ‘Indian Veterinary. Research Institute (FVRI- 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 Q

| Re: WP. No. 587/75 :

Petitioner No, 1 was Professor of. Animal Patholcgy, petitions €T No. 2 was Professor of Animal Genetics and petitioner No. 3 was

«

"'P, K. IYER Pp, UNION @esai, J) : 207°

Professor of, Veterinary Parasitology, all attached to TVRI. Six posts of Professors. one each in Animal Pathology, Animal Genetics,

Veterinary Parasitology, Animal Nutrition, Bacteriology and® Phy- siology were’ created on the iritroduction 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 Professer in IVRI was revised to Rs. 1100-1600" After the up- ward revision during the year 1970-71, the cadre of Professors in: IVRI was expanded bw creating six new ‘post of Professors in various disciplines. Surprisingly, ach of -the petitioners, who -was already- holding post of Professor, was not given the benefit of the upgraded

¥ the existing incumbents of Posts may be considered for revised scale : ‘along with other suitable persons. Tt was.implicit in the condition . prescribed that the petitioners wil have to stand in competition with " others apptications, if there be any, and gd through the hazard of-a_ ’ fresh sélection for thie post each one was alreadv.holding. This is . the’ first grievance voiced by the petitioners in the writ. petition contending that, the petitioners weré qualified for the posts of Professor: ‘and that each of them was holding the post from 1963, 1970 and 1970 ._ fespectively. Thé petitioners made. various representations: basing’.

scale attached to the post:of Professor while on the other band the new incumbent recruited in .the newly creaied ‘posts in) the “year,

1970- Tt 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 whilé 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 coneurrence 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 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.afer upward revision of the pay-scale, and they have the requisite

_ experience and that they are performing the same or identical duties ak

7208 * SUPREME COURT REPORTS © 1984) 2.08 as are . being performed. by: newly recruited. Professors in sister dis. ciplines,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 décision dated April 6, "1972, the ICAR issued an advertisément on May 21, 1974 inviting applications for the post cf 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 appli- cations 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 cnly

- the bias of the ICAR but also’ subjected the ‘petitioners to gress dis- - crimination. Serious allegations of bias and malafide have been:

made against tespondent No. 6, the Director of IVRI, and Director Géneral UF ICAR, which need not be set out here. It may, however, be stated that though the’ ‘various ‘functionaries working in TVRI and ICAR are highly qualified pe rsOns, professional rivalry had led to such poisoning of the’ atmosphere and character assassination

“had become so rampant and the. environment had become so -suffo- ‘cating that the Government of India -had to. appoiht a Committee presided: over by Jate 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 mea sures

- for their improvement.’ It is alleged that absolutely incorrect, impre- per 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 he!d

‘by. the petitioners and to confirm the petitioners-in the aforementioned posts ‘and té give them the benefit of the revised.scale from the daté from which it was given to Professors i in sister disciplines and to quash

’

P. K. IYER ¥. UNION (Desai, J.) . 299 the adverse entries in *the confidential reports of the three petitioners. A . 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. ayn

©". 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 x. Agricultural Research Institute (IARI for short). Petitioner Dr.

Gupta alsé questioned the validity of appointment of Dr. S.L. Mechta - . respondent No. 6 in the High Court to.the post of Senior,Bio-chemist: ”

‘in TART 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 :

“I. Do the petitioners have legal right to challenge the appointment of respondent 6 ?

—_~ 2. Has .the Director-General of the ICAR acted in’ con: travention of any legal obligation i in making the appointment of respondent 6? .

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

a , 4. Was it bad because of the want of qualifications of Dr. Mehta or non-compliance with the prescribed procedure in. making i it ?” .

The. court answered the first question against the’ petitioner holding that ICAR is a society registered under the Societies Registratfon Act and it is neither.a State nor other authority within contemplatior of Ari. 12 of the Constitution, ‘The court t further held that er

ENO. " SUPREME cour REPORTS [1984] 2 the relation between the petitioner and TCAR is “governed by a con-tract and the rulés and the bye-laws of the Society and ICAR was -

‘free to fill ia the post of Senior Bio-cheiniste i 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 petiticner. 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. cf mala fide and in the absence -_ of proof there is nothing to show that the appointment of the sixth. -resfondent was vitiated. either by mala fides or by non- compliance —

_ with procedure... Consistent with these findings, ihe writ petition’

of Dr. Gupta was dismisséd. ‘Simultaneously, the writ . petition filed by one Dr. T.S.. Raman being Writ Petition Ne. 669/72 was dismissed by the common Judgment. aa coe

_ Dr. Y.Py “Gupta filed. S.L.P. No. 2339 of 1979-in this Court. On Ostober 6, 1975, this Court: directed a notice to be issued to ‘the

_ fespondents to show cause why special leave to ‘appeal should not .

. be. granted. When the matter came. up again before this- Court on

= July 21, 1976, Mr.. Lokur, learned counsel appearing for the [CAR stated to the Court that the respondent-council would consider, the question of taking back .the petitioner as.a member of the - post- :

graduate faculty of. TART. 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 pctiticn was rejected .

on October 27, 1976. As second review petition was not .barre

‘at the: relevant time, Dr. Gupta filed Review Petiticn No. 4/77 which is - directed to be heard in the present group of appeal, writ petition: and spe cial 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 Petiticn 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 fited

Review Patition No, 80 of 1976 which i is being heard 3 in this group.

-

P. K.. IYER v, UNION (Desai, J) ok ll

.~

» €:A. No. 5. 1043/81 Appellant Dr. Om Prakash Khauduri - filed: wit 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 exami- ~ nation, - Appellant applied for admission to the competitive examination in ‘Agricultuéal Statistics’ . ‘discipiline. The writfen test “was ‘held from: Ist to 4th February, 1978: The Board incharge of . the selection and appointment on the comparative merits as evidenced * .by the: p2rformance in the wiitten examination selected 20 candidates

-including the appellant as having obiainedge prescribed qualifying marks for. the purpose of viva voce examifation which was held on April 10th and 11th, 1978. After the viva voce test, 13 candidates

Wore, declared as sticcessful and were offered appointment as scientists ’ cin the discipline ‘Agricultural statistics’. -The appellant failed to qualify for the. same. According to the. appellant, 21 vacancies ‘remained unfilled: - Appellant contends that he h%d secured -364 _taarks out of 600 i in the written examination and 38. marks out of

100 in the. viva voce test." It is alleged that the appeliant 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 sélection 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 acrass a case in which the.sheer passage of time and the fast removing "scenario ‘of changing pattern of Jaw resolves the dispute to .some extent. _ a .

. Mr Lokue appearing for ICAR. raised a “al objection.

“222 . oo, SUPREME courr REPORTS : 1984 2S.cR..

that ICAR i 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 therefpre the High Court was 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 ner 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 sub-.

missions because in’ that case a Constitution Bench presided over by-the then Chief Justice ruled that the Council of Scientific and -

Industrial Research, a Gpricty reaistered under the Sccieties Registration Act, was neither a Sfate nor other auothrity within the contempla-

‘tion of Art. 12 and ‘therefore, the writ petition was held not to be .

- maintainable against it. And even though this matter had becomé ‘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 eventhough the law expanding the width and ambit of the . expression ‘State’ and ‘other. athuority’ in Art. 12 had taken strides - culminating in Ajay Hasia etc. v. Khalid Mujib’ Schravardi & Ors. etc. @ And Mr, Lokur continued his submission with unabated fury even though thé learned Solicitor General Shri K. Parasharan appea- — ring for the Union of India fairly conceded that in view of the circumstances disclosed in the case and the trend cf the decsions, it is. ‘ not possible’ to contend that ICAR and its-affiliates [VRI and IARI wolud not be other authority. being instrumentalities of the State and ;

"against which writ jurisdiction could be invoked. Ave ry brief resume of the histoty 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 régistered under the - Societies, Registration Act but substantially when set up it was an .

adjunct of the Government of India and has not undergone any rioteworthy change. On the advent of the’ provincial autonomy under the Government of India Act, 1919, ‘agriculture’ and ‘animal husbandry’ came under the heading ‘transferred stdject’ with the result that they came within the exclusive jurisdiction of the Previnci al

Government. Development of agriculture and research i in agriculture

(D) {1975] 3 SOR. 616. ~. (2) [1981] 2 S.C.R. 79. :

at ee”

r

—

~ pK. IYER y: UNION (Desai,, J.) ; + 213 became the. fesponsibility 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 ecoriomy of the

- country and to make recommendations to consider what firm steps ware 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 telegrami 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 Sociéty 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 Dethi 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

' Sectetariat of the. Council’ will henceforth bé 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 Deceniber 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 inde- . pendent of the Government of India and with a view to: achieving -

2d en SUPREME COURT REPORTS — * {1984} 26.0 7 this position, the office of the ICAR should not in future be a Depart- ment 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 éffect from January 15, 1939. Till then recruitment to various posts in ICAR was-made through. Federal Public Service Commission and this was to be con- ‘tinued 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 of India: to the. Federal Public Service Commission. A_ bill was introdueed 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 Jakhs 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 positicn, _ it has been decided to levy a cess at the rate of 1/2% on ihe vajue-of ‘certain agricultural commodities and the proceeds: of 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 Legisla-

_. ture 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 Agricultura

Research was redesignated as Indian Council of Agricultural Research.

"With: effect from April-i, 1966, administrative control over JARI 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 bya communication dated es ne ro

Y “through the DARE. Rule, 18 of the ICAR ‘rules which ‘was kept- ' in.abgyance 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. oY. ‘The * consequence of Rule 18 becoming operative was that the Sec-

P. K, 1vER Y. UNION (Desai, J. ) oF | 215

April 19, 1966 addreséed by ¢ the Ministry of Agricultiral, “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 exten-.

ded by the communication dated November 9, 1966. In the. meantime, the Government of. India enforced the new tules 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 Agricul- _ ‘tural 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 Depart- .

ment was to look after all aspects of agricultural research and eduction 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 s such functions .as plant and animal’

-introduction arid exploration, and soil and land use survey and plan- ning. 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 ave 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 centres retariat of ICAR ceased to bean 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 Lo

. to the various posts under the Society’s establishment was to be made ~ in accordance, with the Recruitment Rules framed for the purpose.

«.

216 =. SUPREME COURT REPORTS oO [1984] 2s.c.

by the governing body with ‘the approval’ of the Government of India”.

Apart from the criteria devised by the Judicial dict the very birth and its cofitinued existence over half a century and its present - position would leave no one. in doubt that ICAR is-alsmest an inse-. parable 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 Scciety régistered 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 Agricuiture. Even when its Status underwent . a change, it was declared.as an attached cffice

‘of the Government of India. The control of the Government of India permeates through all its activities and it is the bedy to which the Government of India transferred Research Institutes ‘set up by it. .

Tn ordet 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 suffi- cient to make it an instrumentality of the State.

¢

‘Tt was s however urged that The Council of Scientific and Industrial

Reséarch (CSIR’ for short).a society registered under the Sccietics, Registration Act and having an identical set up as well as constituticn, - was held not to be an instrumentality of the State cr ‘other authority’

‘undef 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 Insurancé 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 presideit or that the Government appoints . ”

iy nominees to the Governing Body or that the Government may ter-* |

‘minate 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 instittions aa

P. K. IYER v. UNION (Desai, J.) — 2N7.

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 aspegts are riot sufficient to reach. the conclusion that the Society was an agency or instrumentality of the Government. This Court also referted to some decisions which have held that the companies. incor- porated under the Companies Act and the employees of these com- .

panies do not enjoy the protection ayailable 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 itis 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’ withihn 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 depattment of the Government, . - continued to be an attached office of the Govérnment 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 withih 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 _ariving at the conclusion that it was not an ageny of the Government and therefore, it was not an authority for the oe 218. : mo SUPREME COURT RePonts ; i984] 28.03." A. . proposition that a society registered under the Societies Registiation : Act for that reasonalone would not be comprehended i in the expression ‘other authority’, ‘Tn Ajay Hasia’s case, this Court after taking. note of the decisions in Ramana Dayaram Shetty v. The Interriational Airport of India & Ors. and U.P. Warehousing Corporation v. Vijay Narain, 2)

cand .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 . instrimentality or agency of the State and would

- be comprehended i in the expression ‘other authority’ in Art. 12. -Tn | this connection the Court observed as under:

, “It is in the light of this discussion that we must now “proceed to examine whether the Sociéty in.the present case. is an ‘‘authority” falling within thé. deintion of “state” in ' Atticle 12. Is it an instrumentality or-agency of the Government 2 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 . ds doininated. by the represeniatives appointed by the Central — " 7 ‘Government and the Governments of Jammu &- ‘Kashmir

Punjab, Rajastlian 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 ‘Sacicty. is also to comply with. all such directions‘as -may be issued by the State’ Governnient 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 Cential: Governments is indeed so deep and pervasive -

- that no immovable ‘Property of the Society can be disposed _

“t [19791 1 S.C.R. 1014 at 1042

(2) 11980) 3°S.C.C. “459: ”

t

PK. IYERY. UNION (Desai, J)? Bo 219 - of in any manner without the approval of both.the Goverti- ©. ments. 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 ofthe 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 contro! of. _ +, the affairs of Society and of its income and property is also 7 largely controlled by nominees of the State and the Central Governments. Tt will thus ‘be seen that the State Government and by reason of the provision for.approval, the Central Government.also, have full control. of tite working .of the Society and it would. not be - incorréct 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 Stateand the Cental’. 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 4 1S little doubt | that ICAR is an |, instrumentality or the agency of the State. It came into existence. . , ° ag-an integral department of the Government of India and later on’ ‘y-~ became an attactied office of ‘the. ‘Central Government. The com- * pesition. of the ICAR as evidenced by Rule 3 ‘could not.have been - _ mote governniental in character than any department. of the. Govern- --ment. The Governing Body of the Society would consist ‘of a Presiy¥ - dent of the’ Society, who is none- other than the Cabinet Minister © of the Government of India for the time being incharge 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.ifiterest in agriculture to be appointed by the President. that is the Minister, three. membets of ° Parliament and Aditiondal/ Joint Secretary to the the Government of India in. the Department of ‘Agriculture to be nominated by that Departrhent, oné person, appointcd

2200 * | + SUPREME COURT REPORTS — [1984] 2 s.c..

by .the Government of India to represent the Central. Ministiy/ Department. concerned with the subject of Scientific Research end 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 Governmerit 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’frem the date to -be.

specified by the Government of India. Rule 93 provides for audit of thé 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 Scciety and of all work undertaken during the year shall be prepared by the Governing Bedy 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 cn_ the 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 Recriutment 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 Ccmmission. The administrative and the. financial ccntrel of tke Ger an ment is all pervasive. The rules and bye-laws of the Scciety can te”

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 ard therefcre 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 examine the contention raised i in each’ petition. and appeal c on merits,

Before we proceed to . examine the contentions on merits, a.

ae

P. K. IYER ¥, UNION (Desai, J.) ‘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 uncongeniel atinosphere in which :the highly qualified agri-

_ cultural: scientists in this country have to work. ICAR wes 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 réyolution. 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. Unfortu-

‘ nately, 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

_agrticultural 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 agricultura) scientists, one such ’ being of Dr. M.T. Joseph, Teaching Assistant,Division of Entomology, - TARI who had committed suicide on January 5, 1960. These were .

not stray incidents but the cutcome of persecution, - torture and harrassment 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 preceeded 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 throughcut 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 !coking

’ 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 itis 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 examina-

- tion of the internal affairs. To continue the narrative, a committee was appointed under the. Chairmanship of Shri P.B. Gajendragadkar, reitred Chief, Justice of: India and. Vice-Chancellor, University of .

A.

_ 222

SUPREME court REPORTS _ [1984] 2s. CR, oe Bombay’ and at the ‘relevant time Chaitmaa, Law ‘Commission -with wide terms of reference inter alia to enuqire 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

" “All these complaints have been echoed ‘by several scientists

7 who met the Comniittce. ‘In the opinion of the Committe, its . Report and we ‘take note of only one "of its findings which Teads as -

BR - junder :

* these complaints have some substance. The Panel-of Advisers - ry also Hold the same opinion. The Commiittee i is of the view

‘Division and the Institute shoul 1d be: conducive to research activity.) . (emphasis supplied).

At: another stage, the Committee, has observed that’: ‘in that most’ of these complaints aré due to improper working . ‘conditions in thé Divisions. A scientist belongs to a Divisicn . *.. where he carries out his work. The atmosphere in. the:

the

“present ciréumstances: where a crisis of character and confidence seems to. have overtaken the entire administration of the ICAR, we “think it is absolutely necessary that recruitment of personnel,in all the Institutes: with the ICAR should revert to the UPSC.’ The

“EB. — Committee made it clear, it made this recommiendation,.because it. -- was satisfied that there is obvious dis-satisfacticn -with the recruitments made from 1966 onwards and the Report when browsed through would Jeave an inefaceable impression on the reader that the Commnittee was dissatisfied with internal atmosphere in ICAR and that there was am amount of dis- satisfaction about the recruitment policy and

F° that it was such a perccived reality that it weuld be idle to ignore the a

“same.” Even the Ditector-General, who is concurrently also Secretary to the DARE in charge of ICAR conceded. before 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 agamst the the the

"Head

G ; of the Division about. not giving. adequate facilities for work and the lack of academic atmosphere and an absence of domestic appreach

YY permitting free discussion on sesearch projects and results obtained - _ were genuine and: they required to be remedied. There is further ;

to.

rr Report of the ICAR Enquiry Conimittee, 1973; Chapter VIT page 54,

(2) Report of the ICAR Enquiry Commitee, 1973, Chapter II page 12..

Af

-. PK. IYER ». UNION (Desai, J) , “+ 223.

the recommendation with regard to vertical structure of scientists © and: the scales of pay attached’to each cadre. It is unhappy.to note .

that things have hardly improved since. the Report of the Committee

: because in the first writ petition, petitioners were again: to be exposed - _ to: chazards of a fresh selection and the ‘complaint of Dr. Y.P. Gupta _ is essentially the same as ‘noticed and commented upon by the Com- a Tuittee. i

Re : W.P. No. 587/75: In this writ petition, the substantial grievance is that even though the three petitioners were respectively. - holding the post of Professor in Animal Pathology @Animal Genetics ay Veterinary Parasitology from 1963, 1970 and 1970 respectively, ien the pay-scale for the post of Rrofessor on the recommendation of the University Grants Commission. underwent an upward revisién

. .to Rs, 1100-1600, the IEAR instead of. ‘straightway granting the scale to the petitioners, the holders of the posts'of-Professcr, preceeded

. to.issue an advertisement on May 21, 1974 inviting fresh applicaticns for the post of Professor i in the three subjects” in. which the petitioners were already holding the post of Professor and simultancously appointed some others in different subjects and disciplines as’ Professcrs and gave theni the revised scale while the petitioners -were left to” ‘janguish in the old scale. ‘According to the petitioners, apart from '_ gross discrimination in. the matter of equal pay for equal work; the direct consequence of this unfair and arbitrary action of the . third respondent was the adyerse affectation i in the seniority in the cadre of

Professors because those who were: appointed in the* revised scale

‘scored a.march. over the petitioners who continued to languish ‘in the pre-tevised scales.“ Petitioners contend that the situation is recreated which was adversely commented upon “by the Minister * ’ in the Parliament that the recruitment .policy adepted- by ICAR necessitates a. scientist to apply for -posts. and being interviewed by selection committee with attendant hazard and- consequent frustra- tion, Petitioners therefore pray firstly for cancelling. the adverfe-. __ ment -issued for the purpose of. inviting applications for the posts already held by them and secondly for granting ..them equality of.

treatment in the matter of pay-scales with. other. Professors with whom they stand on terms of equality and ‘are better equipped because of longer experierice. - Petitionegs say that in 1970-71 six posts. of

* Professor were created in the revised scale cf Rs. 11€C-1€CO at IVRI in the discipline of Poultry Science, Poultry Patholcgy, Veterirery

_ Public Health (Calcutta Centre of IVRI), Bicchemistry, Epidemiolc gy and Veterinary Public Health (IVRI Centre). The revised scale svas sanctioned for these newly created posts pursvant to the Tecem--- .

4 +

°

224 _ SUPREME COURT REPORTS . [1984] 2 s.cr.

| .-mendation of the University Grants Commission. -Let it be made ' distinctly clear that the revised scales were .,méant for the post of Professor in TVRI not for the post in any particular discipline. Petitioners were holding posts of Professor in IVRI, and therefore the p3titioners contend that the posts of Professor held by them would be governed by the revised scale effective from the date on which new posts were created -and filled in, in the revised: scale. Respondents’ __ response to this contention is that ICAR informed the Director of IVRI as per its letter dated January ‘20, 1971 that three posts of Professor in the scale of Rs. 1100-1600 in Veterinary Bacteriolegy, Animal Nutriffén and Animal Genetics have been sanctioned suject to the condition that the ‘existing posts of Professor cbviously in . the same disciplines in the scale of R's. 700-1250 stand abolished. Shorn of embellishment, it would mean that the posts in the aforementioned three subjects shall hencefortt carry the revised scale of -. Rs. 1109-1600.+ ‘The respondents assert that the revised scale was not

2 automatically granted to the existing holders cf the posts but they.

would be considered with other applicants fer appointment in the _ higher scales, if they are otherwise suitable. Jt was also tad that

"in the letter of appointment as Professor each of the petitioner was .

informed that as the post of Professor is being upgraded, each of them will have to face selection test. Letter of appointment: dated | March 25, (1970 in respect ‘of petitioner No. 2 though relicd upon was not on the record but when produced in the course of hearing. ‘with an affidavit; it belied the statement. There is nothing in the, letter of appointment ‘of each of the petitioners that when the revised scale for the post.of Professor will be introduced, ‘the incumbent of ‘the post will have to face a fresh selection. It is not clarified Whether the three posts of Professor: in Veterinary Bacteriology, Animal nutrition and Animal Genetics in the pre-1evised scale were already | filled in and whether the holders of of the posts got the revised scale ‘without any-fuss of fresh selection on the part of the -respcndents. | @he counter-affidavit on behalf of respondents Nes. 1,2,3.4,5 and 11° _is conspicuously silent on this point. However,. it, is ccntended that -. the ‘qualifications for post of Professor while sanctioning the revised scale was altered in as much as when the post of Professor carried the scale of Rs. 700-1250, the essential qualification required wes only.

a post-graduate: degree in the specific. discipline whereas in the post * created in the revised scale, a Dectroate degree in the subject along with the specialisation in the relevant discipline ‘was prescrited ard _ which fact can be gathered from the model qualifications prescribed ~ for similar posts in all the research institutes cf ICAR. It was. further .asserted that earlier the minimum experience required was about

’

»

7«

_not discriminated because they* were given an opportunity to contest | fessor would be governed by two different scales even though ‘the’

P. K, IYER Y, UNION (Desai, Jo. 0 (225

5 years whereas it was revised to’ 7 years.. Nothing would be more °° A misleading than this eye wash performance “which “really hides the trué intendment naniely, to exclude the present incumbents of the posts of Professor and to expose them to a competition with same rank outsiders who may as in the case of Dr.-S.L. Shah ‘scare a march in the name.of , selection: which ecnerally leaves a grey area. Petitioners Nos. 2 and 3 do. hold a Doctorate in their respective ‘discipline . _ B-

- with experience extending more than 7-years in the discipline. Petilic-, _ ner No. 1, who does not hold a Doctorate has to his credit M:R.C.V. S.

which has been recognised by the Government of India as possessing . post- -giaduate qualification in Veterinary arid. ‘Animal | Sciences: and

. teaching posts including the post of Director of IVRI and continue to be’ recognised as guide /teacher for post-graduate degree courses. - Cc: The subterfuge was to expose the petitioners to a fresh selection test’ ‘with ‘all its consequential uncertainities and that was the exact thing |. found. by Dr. ‘Gajendragadkar ‘Committee. That: is why it can be -

- gaid that like the true Bourbons ‘ICAR has learnt nothing and for- gotten nothing.’ The hard fact is that the petitioners were’ holding a the. posts of Professor when the ‘révised scale ‘became effective. In the letter dated January 20, 1971 satictioning revised scale for the © post. of Professor, there is not even ‘a whisper that the, existing incum-~ ‘bent- will be denied the benefit. In fact, it is well-known that the

, University. Grants Commission regularly recommends revised scales © for every plan period, ‘for teaching- posts and the revision -takes ncte

" of inadequate scales sanctioned till the date of revision. The only EE justification offered by the respondents for -denying the’ petitioners ; the benefit of the revised’scale is to be found in the counter-affidavit ° of Dr. M.S. Swaminathan. It is conterided that .the newly created. “postin the.cadre of Professor is not the same ‘as the then existing . ‘post and that there was marginal revision in the: qualifications foro F the. posts of Professor in the revised scale and that ‘petitionets were - for the posts'in the revised scale. The. justification is co flimsy to merit any serious consideration, more so-in view of the fact that it is

- diffica't to cavisage 4 sittiation in such institutes, ‘undertaking advance resea”ch in. Agriculture and Animal ‘Husbandry where persons holding . G Doctorate qualification and enjoying the. status of the post .of Pro- .

duties, responsibilities and functions in various sister. disciplines are ideniical. In such.a situation: ‘Art, 39(d), trust assist us in reaching a fair and. just’ conclision. Etaborating the underlying intendment H of Art. 39(d), Chinnappa Reddy, J. in’ Randhir Singh vs ‘Union of ;

B-

Db

226 | SUPREME couRT REPORTS : [1984] 2 s.c.x:

- India & Ors. observed that construing Arts. 14 and 16 in the light of the Preamble and Art. 39(d), the Court was of. the view that the principle ‘equal pay for equal work’ is deducible from those Articles

-and may be properly applied to the cases of unequal scales of pay based on no classification or irrational classificaticn though those drawing the different scales of pay.do identical work under the same | employer. The case in hand i isa glaring example of discriminatory treatment accorded to old experienced and highly qualified hands "with an évil eye-and “unequal hand and the guarantee of equality in all its pervasive character must enable this Court to. remove discrimination and to restore fair play in action. No attempt was made

_to sustain the scales of pay for the post of Professor cn the dcctrine of classification because the classification of existing incumbents as being distinct and separate from newly recruited hand. with flimsy change in essential qualification would be wholly irraticnal 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 TVRI and other, institutes were created and filled’ in in revised scale is unanswerable aid must’ be conceded,

When the mattet, was discussed threadbare Mr. Atdul Kbecer, learned counsel for the Union of India stated that all the petiticners would be put in the revised scales from the time the post.of Professor in upgraded scale was filled-in in sister disciplines. Mr, Khader stated ‘that petitioners Nos, 2 and 3 are already .in the higher grade _and any attempted fresh seletion to’ fill-in those posts has been cancelled. He further stated that the first petitioner ; had to be uncfiicially

- put in the same scale on account of the failure of the first petitioner to © exercise his option to bé in the employment of the ICAR and that as by now he has exercised-his option he will enjoy the same benefit.

Thus Mr. Khader fairly conceded that*all the petitioners will be’ put | _in the revised scalé from the date fresh recuitment was made in sister ~ disciplines in IVRI in the revised scale, and if the seniority was dis- turbed on account of the earlier approach, ‘the same would be rectified.

If.the petitioners are entitled to the revised scale as hereinabove

"indicated, and should be put in the same pursuant to the mandamus | we propose to issue in this case, itis immaterial whether the advertise-

- ment which was issued is cancelled or not. If the respondents still _ want to pursue the advertisement, they may do so without in any

(i) [1983] i SOC, $18.

P. K. IYER ¥. UNION (Desai, J) a 227 manner affecting the position of the petitioners and the petitioners _

"need not expose themselves to the vagaries of a fresh selection. It is . - therefore, not. necessary for us to cancel the advertisement for the 7 reasons herein indicated. ‘This would dispose of W.P. No. 587 of 1975. °° ; Be

’ Re + RP, No. sof 97 in S.L.P. No. 2339/75.

~ DrYP. Gupta filed Writ Petition No. 276 of 1972 in the High Court ‘of Delhi. In this writ petition, he primarily raised two con- ‘tentions * -(i) that the selection of. respondent No. 6 for the post of Senior Bio-chemist was illegal as he did not possess essential qualifications, and (ii) the removal‘of the petitioner from the _ membership of the Post-graduate Faculty was unjust and invalid.

It was alleged that in December, 1970, ICAR advertised a post . of Senior Bio-chemist in IARTin the scale of Rs. 1100-1400, The " essential qualifications were set out in the advertisement as under :

i) Doctorate in Biochemistry or Organic Chemistry or agricultural Chemistry.

(ii) 10 years research experience in the field of Nutrition with: particular reference, to quantity and quality of protein i in food grains as evidenced by published work, |

‘(iii) Ability to plan, organise and guide research involving biochemical techniques as. applied ‘to protein chemistry and radio-tracer: studies.” ne

. Amongst others, petitioners Dr. YP. Gupta, Dr. T.S. Raman ‘and | respondent No. 6 in ‘the High Court-Dr. S.L. Mehta applied for the post. A Selection Committee was set up with Dr. J. Ganguly; Professor of Biochemistry as Chairman and Dr. P.K. Kymal and Dr. .N.P. Datta as members. Intending candidates including petitioners Dr. Y.P. Gupta, Dr. T.S. Raman and respondent No. 6 - Dr. S.L. Mehta were interviewed by the Selection «Committee. The Selection Committee found that none of the candidates interviewed or considered in absentia fulfils all the essential qualificaticna laid .down for the post and therefore, the Committee was unable to recommend any name at that stage. The Committee further recom- | mended that the post may be readvertised and essential qualification No. 2 should be amplified by adding the clause ‘10 years research "experience in the field of protein Chemistry.’ The. Selection Committee farther recommended that from amongst the candidates interviewed ey

228° oo SUPREME COURT REPORTS a -(1984}2 sen.

and: ‘considered in absentia those whose names. were set out in the teport be called for.fresh interview which may be held afler the post is’ advertised. afresh with expanded essential qualification, This list includes the. names of petitioners Dr. Y.P. Gupta and Dy. T.S. Raman -. "as also respondent -No. 6 Dr. S.L. Mehta. A fresh Selection Com-

Tn mittee was set up which included respondent No. 5 Dr: M.S.’ “Naik 7 against whoni numerous allegations of mala fides have been made, The new Selection Committee interviewed Dr. Y.P. Gupta along with others.. Ultimately, the second Selection Committee recommended. _ Dr. S:L. Mehta for the post which led to the filing-of the petition o inter alia ov the ground that Dr. S.L.. Mehta did nof satisfy the mini- os.

mum essential qualification,

" Another grievance in the. petition is that petitionés Dr. Y¥.P.

* Gupta was a member of the faculty+in the’ post-graduate school at IARI from 1965 to May 1971 and he was illegally and arbitrarily 2” ‘removed. from the membership of the Faculty. In the.communication ’ dated June 15, 1971 by the Assistant Registrar to Dr. M.S. Naik, Head 6f the Biochemistry Department, Ann.-P-! to the petition in the High Court, it is stated that the letter of Dr. Y.P. Gupta dated May

30, 1970 was considered by the Academic Council which unanimously

‘resolved that Dr. Guptawas not interested in continuifg-as’a member of the Faculty and hence the. Council” regret’ to utilise. bis service as a member of the Faculty to the post-graduate school any more. ”

' Thus according to the ‘petitioner, he was removed from the member- ship af the Faculty while according to the respondents by the letter dated May 30, 1970 Dr. Gupta ‘submitted’ his resignation which’ was accepted by the Academic Council with ‘regret.

_ The High. Court rejected the petition primarily. onthe ground — 7 that no writ petition lies against TARI, a ground no more available - : to the petitioner. On the merits, the High Court held that Dr. Y-P. ; Gupta has failed to substantiate: the allegations of: mala fides made .._ - against respondent No. 4—Dr. M.S. Swaminathan and respondent: “No. 5 Dr. M.S. Naik. The High Court further held that the Selection: -Committee had the power to. relax the essential qualifications and the veey fact that respondent No..6 Dr. S.Le Mehta was appointed on the recommendation of. the Selection ‘Committee it must have | been done’ by. necessary implication after. relaxing. the esséntia! qualification and therefore, the appointment ‘of respondent Ne. 6— Dr. 'S.L. Mehta was valid and unquestionable. - With respect to the second

*, grievance, the High Court’ held that Dr. Y-P. Gupta ceased to be a 7 member of the Faculty and that he was not removed from the member- 0 ship and it was not necessary to hear, hina because it was nota case ~ of removal but: of cessation of membership and therefore no -relief can be granted to Dr. Gupta. -

Before’ we proceed to exaimine the “contentions raised by Dr.

' Gupta on merits, we must dispose of a preliminary objection raised °.

on behalf of the respondents: It was submitted that not only the.

et ment of Mr. Lokur, learned counsel who appeared for ICAR as also the Institute that the Academic Council would consider the question .

of taking back the petitioner as.a member ‘of the Faculty. Thereafter,

“Dr.. Gupta filed R:P. No. 79/76. which was also. rejecte'd by. this”

Court on Oct. 27,.1976. -At the relevant time as the-successive. review petitions were not’ barred, Dr. Gupta filed R.P. No. 4/77. This review petition was kept pending and was finally directed to .be heard with the Writ Petition No. 587/75, by the order. of this Court’ in - ”

‘C.M.P. No, 17350/79 dated December 19, 1979., Preliminary objection is that no case is made out by the petitioner for review of the

' ‘decision of the Court rejecting petition for special leave ‘filed by the. "petitioner, The writ petition filed by Dr. Gupta jin the High Court - ona reference made by a Division Bench was heard ‘by a. Bench of five Judges and the larger Bench focussed its attention on the main question whether the writ jurisdiction can be-invoked against ICAR and its: affiliates and it was held-that the writ, jurisdiction cannot be invoked. Once the High Court heid that the writ jurisdiction cannot be invoked, it could not- ‘proceed to examine the conténtions raised by Dr. Gupta ‘on ‘merits. The moment the High Court held that it had no jurisdiction to entertain the writ petition, it- became functus’ officio. and therefore, its decision oi the merits of the contention is: of no’ consequence and at‘ any rate could not conclude the matter against the petitioner. Now that it is 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 Art. 12 of the.

Constitution, ‘justice’ demands that the Court must examine the contentions of Dr. -Gupta on ‘merits. We. accordingly, overrule | .the preliminary objection raised on behalf of respondents and proceed to examine the conteritions on merits by allowing the review petition

- No. 4 of 1977 and grant special leave to appeal to the. petitioner. .

Both the’ contentions may be ‘separately examined.

The. first contention is that sespondént No. 6 Dr. Si: Mehta

P. K. rye v. UNION (Desai, J). Lo, . 229 - writ petition filed by Dr. Gupta’ was dismissed by the High Court on metits but S.L.P. 2339/75 against the. decision of the-High Court . was rejected by this Court on July” 21, 1976 after:recording the state- - i

230 ~~. co: ‘SUPREME COURT REPORTS - [1984] 2s.c.r..

who was selected by the Selection Committee for the post ‘of Senior Bio- chemist after the bizzafe exercise undertaken to find a suitable person to fill in the post on the earlier occasion, did net fulfil one of the essential qualifications for the post. Jt was urged. that in order to help respondent No. 6 to get selected essential qualification was doctored to suit his requiréments and respondent No. 5 was nominated: on the second Selection Committee. When the post was first adver;

__ tised, one of the essential qualifications was ‘10 years ‘rescarch experience in the field of Nutrition with particular.reference to quantity _and quality of protein in food grains ds evidenced by. published work.’ It is not'in dispute that Dr. Gupta, the present pet't‘cner, did satisfy th’s and other essential qualifications. The first Selection Committee examined the suitability. of seven . candidates including petitioner Dr.. Gupta, Dr. T.S Raman, petitioner in cognate petition and: respondent No. 6 Dr. S.L. Mehta. The Committee spécifically recorded its finding that none of the candidates interviewed or consideied in absentia including respondent No. 6,, selected at’a later stage, fulfils - all the essential qualifications laid down for the post. The Committec recommended that the post be readvertised after amplifying the essential qualification in the matter of experience namely ‘10 years research. “experience in the field of Protein Chemistry’. The post was the- post — of Senior Biochemist. 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. 1t is difficult. to eface the impression that the amplification was done keeping in. view: the. qualification ‘which

' Dr. S.L. Mehta had: and even: then the question did arise whether.

he Satisfied the original or the amplified essential qualification. The Committee. recommended that pursuant to fresh advertisement, it would not be necessary for the petitioners Dr. ‘Gupta, Dr. T.S. Raman and respondent ‘No..6. Dr. S.L. Mehta to submit a fresh application and they should be interviewed again with other candidates available on readvertisement of post. The’ Selection Committee was recons- | tituted by nominating respondent No. 5, M.S. Naik, Head, Division | of Bio-chemistry, IARI: . All members of the first Selection Committee were available. No explanation is offered: what necessitated expanding the Committee by nominating Respondent No. 5 on the Selection Committee. And let it be recalled that the relations between petitioner Dr. Gupta and respondent No. 5 were by that time. considerably strained. It is therefore difficult. to escape the conclusion that the - _. purported amplification of essential qualification appears to be a. device to exclude Dr. Gupta who fulfilled the first prescribed essential ;

?, K. IYER v. UNION (Desai, J) xt!

qualificat on and oblige respondent No. 6 to fit into. altered qualification. .

Two errors ate pointed out in connection with the proceedings

_ of the second Selection Committee in which Dr. M.S. Naik partici- pated, namely, that the proceedings were vitiated on account of the bias of Dr. M.S. Naik and that the Committee failed to interview

Dr. T.S. Raman and his case went by default not on account’ of his | fault but on account of inefficiency and inaction on the part of the administration responsible for intimating to Dr. Raman the date.

‘of interview.

' At the outset we must notice one development which renders * a detailed examination of the contentions’ raised by Dr. Gupta unnecessary’ though we cannot refrain from expressing our distress: about the rectuitment method adopted by the ICAR and its affiliates. This exercise, we are undertaking to satisfy ourselves.

whether after the unravelling of despicable state of affairs in. the internal administration of ICAR and its affiliates by Gajendragadkar

Committee, has any improvement become noticeable ?.

Dr. Gupta ‘challenged’ the selection and.appointment of res- pondent No. 6 as Senior Bio-chemist. The post of Senior Bio- chemist has since been abolished. Therefore, setting aside the selection’ of respondent No: 6for the post of Senior Bio-chemist is only of academic interest. However one aspect which we cannot overlcok is that by this process of selection seriously questioned in this petition,

Dr. SLL. Mehta has scored a tharch over petitioner Dr. Gupta and his.”

co- petitiones Dr, T.S. Raman in the matter of higher scale of pay:

The first question to which we must, , therefore address ourselves is whether there is any substance in the contention of Dr. Gupta __ _that even applying the amplified essential qualification, respondent. No. 6 Dr. S.L. Mehta was not qualified for being sclected: for the — post ? The finding recorded by the High Court in this connection is eloquent to establish that Dr. S. L. Mehta did not fulfil either the original or the amplified essential qualification, of pertaining

‘to experience. Says-the High Court that the research experience’

respondent No. 6 Dr.:S.L. Mgbta started from October. 1962 when he was preparing research thesis for M.Sc. The selection -took _ place in February 1972 with the result that the research experience of Dr. Mehta fell short of 10 years. This finding was not only not controverted but is unassailable. And we do not subscribe to the

2320 SUPREME COURT REPORTS

. 1984) 2 S.C.

view that the period spent. in n preparing “thesis for M. Sc. —mark, not . Ph.D, counts towards required experience. It ig well-settled that . experience to ‘be of value and utility must be acquited after the educa-. . tional qualification is ‘obtained and’ not while acquiring. the ‘post- : - - graduate qualification: «In ‘the case of Ph.D. Degree awarded on Tesearch the situation may be different, - But preparing thesis after - _ graduation - for acquiring post: -graduate degree would’ not count ‘towards ‘prescribed experience qualification. Respondent No.. 6 qualified for M.S.c: in 1964 and Ph.D. toward the end of-1966 in soil science and Agricultura’ Chemistry under the. guidance of Dr, N.B. Das and joined. service at JARI. in July, 1969. Thesefacts are

_uncontroyerted and therefore, - the High Court overlooked -the ‘fact that respondent No. 6 Dr,.S.L. Mehta, had research experience extending only over hardly a. period of 5 years.’ Further the High Court

’ failed'to notice that respondent No. Gappeared not to carry on research in the line of Nutrition’ or protein. Chemistry: and’ therefore he did not fulfil the qualification at ail and in our opinion, hie even could

“not havé’ been called for interview by the Selection Committee, ‘Not + ~ only that, in -para® tO of the writ petition in the High’ Court, ‘it was *, specifically asserted that respondent No. 6 Dr. Mehta did not ‘satisfy © ihe original or amplified essential qualification ‘pertaining to experience

. because the post was under the project on the protem quality-of millets, .° - sorghum, wheat and other cereals concerned with studies on the nutri- ' tional quality of food ‘grains’, whereas Dr. Mehta has never done any work nor published any literdture in the line of nutrition nor was

- he ever basically trained in this line. Int ‘the = counter-affidavit filed ‘on behalf of respondent Nos. ‘Q.and 4 that.i is Director General atid - Secretary to the Government of India, ICAR and Director General ° of ICAR, this averment was neither’ questioned ‘nor contioverted nor deniéd. Further the High Court upheld the slection and appoint-"

ment of respondent: ‘No: 6 Dr. Mehta holding’ that’ as the Selection Committee’ had power -to relax the essential qualification, the appoint: ment of Dr. Mehta was made after relaxing the essential qualification.

We find it difficult-to appreciate that the. High Court shouid uphold "an appointment of a’ person, to suit whose Tequirement, the essential qualification was amplified. by providing an irrelevant additional amplitication and yet who failed to qualify for the same by resorting’ to the power of relaxation. And we are not satisfied that. the second .° . Selection Committee had: the. power to relax’ “essential qualification pertaining to experience, In this Annection, it is advantageous | ’ to refer, to the counter- affidavit of respondent, No. 4, the Director- . “General of ICAR, wherein he staied that first essential qualification pertaining to educational attainment. was relaxable.- He is silent as

P. K. IYER vr UNION (Desai, J) co 83 to the- second essential qualification’ pertaining to experience, “The relevant portion may be extracted :

“Doctorate in Bio-chemistry 0 or Oganic Chemistry or . Agricultural Chemistry-relaxable to. M.Sc. Degree or equivalent post-graduate qualifications in the case of candidates. , with exceptionally distinguished - record of productive research.” ”. ‘

It-is not Suggested that: there was power; of. relaxation with regard to second essential qualification. However, neither respondent . No. 6 nor respondent Nos. 2: and 4 ever asserted that but for power of relaxation claimed, respondent No. 6 could ever be said to ~ have satisfied the -essential. qualification pertaining to experience. ‘In’ this connection, we may refer toa counter-affidavit on behalf of. respondents vo ‘Nos. 3.and 5 to 7 which ‘included respondent No. 6 the _party con. .

~~ cerned. _In the. counter- affidayit, there is an sphinx like silence with

~ regard to the averments made in para 10 that respondent No. 6 Dr. |

Mehta did‘not satisf y the essential qualification pertaining te experience, . Sub silentio an admission can be spelt on behalf of respondent No. 6 that he did not have requisite essential qualification as to. experience. - Therefore, the conclusion is inescapable that . respondent’ No. 6 Dr. — Mehta did not satisfy the essential qualification pertaining to experience . even after the iICAR and. its affiliates and respondent No.'4 amplified: _- the, essential qualifications. ‘And we could not trace the source of - . power if any to relax esséntial qualification'as to experience. There- -fore; on the face of it the selection of respondent No. 6 for the post of Senior Biochemist is utterly unsustainable. More so because: ~ there: were others who fulfilled all essential qualification and one is “deft to speculate the reasons which weighed with the Sélection Committee to réject them: and-to select a.person’ who did not fulfil the essential qualification for such a post as Senior Biochemist, claiming non-existent power to relax the qualification: *

In this context one moie ‘submission may: be disposed of. Kt was said that the Committee consisted of experts and they were highly. qualified persons who would be able to evaluate and assess the relative — merits of each of the candidate before it and the Court is Jeast com-

. petent t to do so and therefore it-would be tinwisé to substitute experts’ decision by Courts” decision. In -this connection, reliancé was placed om Dr. M.C, Gupta & Ors., y. Dr. Arun Kumar Gupta & Ors. in which this Court lield as under. °

(A) [1979] 28.CL, 339°

234 00~=~SSst«‘CS SUPREME couRr REPORTS: _ [1984] 2 s.c. Re.

“When selection i is . made by the Commission aided and _ advised by experts having technical experience and high | academic qualifications in the specialist field, probing teaching/research experience in technical subjects, the Courts “should be slow to interfere with the opinion expressed by ‘experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the « courts generally. can be. Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it. the court in excerise of extraordinary jurisdiction to enforce - tule of law, may interfere in a’ writ Petition under Art. 226.”

It was urged that once it is conceded that as the power of selection and appointment vests in the ICAR, the: Court should not usurp |

“that power merely because it-would have chosen a different person . as better qualified (See State of Bihar v. Dr. Asis Kumar Mukherjee |. .

Undoubtedly, the Court must look with respect upon the performance ‘of duties by experts in the respective fields as has. been said in.Dr. M.C. Gupta’s case. However, the task of ushering a society based on rule . of lay i is entrusted to. this Court and it cannot abdicate its functions.

Once it is most satisfiactorily 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 contraven-tion of the established norms prescribed byadver tisement - and power of the Selection Committee and procédure of fait-and just selection and equality i in the matter of publice mployment and to rectify:

resultant injustice and establish constitutional value this Court must ‘Interfere. Selection of respondent No. 6 is contrary to rules and orders. and ni violation of prescribed norms of qualification. He was.

ineliibleg for the post” when selected. His selection and appointment would ‘be required | to be "quashed and set aside.

_ The present position however is that the post of Senior , Biochemist has been abolished. Undoubtedly, respondent No.’ 6 by undesctved benefit of improper sclection has scored a march over his colleagues in the matter of pay scales to which he would not be entitled. Petitioner Dr. Gupta was put in the scale of Rs. 1100-1600 in 1978 while respondent No. 6.Dr. Mehta was put in that scale in 1980 that is two years after.the petitioner. By the illegal selection respondent .

e

(1) {1975} 28.C.R 894. :

of

¢ .

y

P. K. IYER y. . UNTON (Desai, J. ) , 235

No. 6. has reached the scale-of Rs. 00-2250 while. Dr. Gupta i is in the scale of Rs. 1500-2000. Respondent No. 6 Dr. ‘Mehta: is enjoying this utterly undeserved benefit consequent, upon his unsus- tainable selection as Senior Biochemist.

Now that the post of ‘Senior Biochemist is abolished; how. do

. we redress the wrong. At the hearing of this petition, it was suggested to ‘the. respondents to put both Dr. Gupta and Dr. Raman whose case, will be. presently examined in the scale of Rs 1800-2250 from the date respondent No. 6 Dr. Mehta has been elevated to that scale. That is the only. way for securing justice t to Dr. , Gupta and he is entitled to it.

The second grievance of Dr. Gupta is S that he was illegally _temoved from the. membership of the Post-graduate Faculty by the "Academic Council. Few relevant facts in this connection are that Dr: Gupta felt that he was unjustly treated by his supetiors by not allocat- ing students for Ph.D. to him and by. not facilitating post-graduate -

‘teaching. There is a long drawn-out correspondence in this behalf which we consider unnecessary -to refer to save and except the letter ‘dated May 30; 1970 which has been treated by the Academic Council ° as a letter of resignation of Dr. Gupta from the membership of the - Faculty. By this fetter pettioner Dr, Gupta - informed. the Academic - Council that even though he has been repeatedly assured that his grievance would be theroughly examined and full justice would be,done to him for the discrimina jen and victimisation to which he has been subjected in the matter of allotment of students of 1968 and 1969 batches, nothing has been done in this behalf. He further states that he has been all along patiently waiting for the redressal of his grievance, yet justice has not been done to him, He then states as* under :

, “As such, after showing so much patience in the matter, Lam sorry to decide that I should resign from the membership ‘ of the Faculty in protest against such a treatment and against the discfimination and victimization shown to me by the Head of the Division in the allotment of students of 1968 and 1969 batches and departmental candidates.” :

This letter ‘was. placed before the meeting of the ‘Academic

Council convened on-May 3, 1971-chaired by respondent: No. 4. Letter dated May 30, 1970 of the petitioner was. placed on the agenda at . Item No. 17. In this connection, the Academic - Council resolved as’ under:

(236 CO SUPREME COURT. REPORTS oan 198412 sem.

“Your letter was considered by the Council at its meeting held on 3rd May, 1971] when the- Council came lo the unanimous conclision that you were not interested in continuing as Faculty Member and hence the. Council regrets iq utilize your services as: a Faculty Member of thé P.G. School any more.’

‘The callous and heartless. ‘attitude of the ‘Academic Council is ‘shocking. It adds insult to injury. .Dr. Gupta has been the victim

-of unfair treatment because he raised-a voice of dissent agiinst certain claims made by the high-up in ICAR in the field of Research. Avoiding

‘going into the details of it, this, resulted in Dr. Gupta being denied

__ the allocation of students. *He did not-act in a precipitate manner. | ‘He went on writing letter after letter even including to respondent No: 4 beseeching him to look into the matter and to render justice’ _ tovhim: When everything fell on deaf ears, out. of exasperation he wrote letter dated May 30, 1970 in which he stated that the only honou- ~ _ rable course’ left open: to him was to’resign rather than suffer. The

Council siezed upon this opportunity to. get rid of Dr. Gupta: Inthis connection, it is worthwhile to point, out paragraph 11.1 in ‘Chapter : Xi of the Gajendragadkar- Committee’s report wherein the major complaints regarding: working conditions in the Divisions were listed “as under: . Co . :

» “(i The ‘Head of the ‘Division ‘does not give ‘facilities for work, He favours those who ek for him.

Gi) ‘There is no academic atmosphere as’ there is no. free dis-. ‘cussion.on.research projects and results obtained:

(iii) ‘Senior Scientists insert their names in research papers even though they do not do the actual work..

(iv) Purchase of chemicals, glassware ete, take inordinate delay.

' (vy) Scientists are not. alfowed to use certain equipments - ‘ which are available in the Division or in the Institute, - For. example, the equipments available in the Division * ”

of Biochemistry.of IARI are not shared by all the colleagues of the’ Division. The Nuclear -Research 7

Laboratory has several equipments which scientists of | a eo other Divisions normally cannot use.’

_ After disting these complaints, the Commitiee gave its considered opinion as under :

PK. IYER y UNION (esa J. y. : . 237

112° We feel that most of these complaints arv genuine and. , they should be. remedied. The working conditions for scientists should be made attractive so that a: scientists would be encouraged to engage himself in research rather than ‘engage | himself in, unacademic activities. So the _cotiditions in a Division should be set right first.”” » “(underlining ours) .

The Committee proceeded to make numerous recommendations to ameliorate the situation. In this - ‘context we would also like to — -refér to paragraph 13 at page 152 of the Report which reads as under:

“As more instances of allegations of unscientific attitudes, behaviour and practices in. TARI, we -cite the following. : These come from the submissions made by three scientists + -- ‘of the Bio-chemistry Division of JARI, Dr. T.S. Raman -_ challenges the findings 1 in the, Ph.D.. thesis of Dr, L. S. Mehta, * ‘a Biochemist in the Nuclear Research Laboratory. Dr. Raman ‘categorically asserts that certain data centained in’ Dr. Mehta’s thesis “could not have been cbiained by methcds he has. claimed to have, been used.” Dr. Y.P. Gupla who apparently has himself worked on‘the lysine content of . | :. different varities of wheat, states that in. the half-yearly report for period ending October, 1968, “he had. reported the lysiné ” * content of Sonora-64 to be 3.26 %-— but that the Head of the Division deliberately changed it to 2.26 % sa that the Sharabati . Sonora might appear in a more favourable light. He seriously: disputes the data ‘on the protein “and _lysine-content - of Sharabati: Sonora published by. Dr. Swaminathan in. "+ the Noyember 1967 issue of the journal “Focd Industries”.” Dr. K.G: Sikka states that four varities. of Arhar (cajanus) have been recently released which he finds contain certain’ toxic’ substance causing blindness among rats. Within the ‘short time available to us, it has not been possible for usto examine these allegations, We do not also think that it’, would be a fruitful course for us to pursue,. It is obvious that these are very-serious aliegatons.. Whether. thay are substantiated: a’ careful exaination, the ‘fact remains that ‘there are- many junior scientists in- JARI who, rightly “OT wrongly, feel that they are not free’ to publish a. scientific. fiiding because it does not suit somebody . higher. up or ' that in fact unscientific data are being .passed on to the - higher, authorities in return of favours | and promotions.

ee

238. SUPREME CoURT REPORTS [1984] 2s...

The existence of this feeling is most regretable because it creates the conditions for breeding of unscientific behaviour and practices if they do not «already exist. Mere refutation of the allégations will not therefore do.” —

Dr. Gupta’ S complaint was then noted and that is the com- -plaint which awaits redressal, It clearly transpires that Dr. Gupta .

was hounded out of the Faculty. membership and now the respondents try to hide this inconvenient fact by treating the cry of agony in the letter dated May 30, 1970 as Jetter of resignation. Apart from being harsh, it is an unethical attitude on the part of the ICAR. However, | at this stage, we would record a -statetment made by Mi. Lokur, learned counsel appearing for ICAR and its affiliates before this Court .

on Ju.y 21, 1976 at the hearing of S.L.P. ‘No. 2339/75 preferred by petitioner. Dr. Gupta which’ teads'as under: :

“Mr. Lokut states that the ‘respondent council would . -consider the question of - taking back the. petitioner as a .-

" member of the Faculty. ”

"After recording . this sta tement the special leave petiticn was rejected. It’ was hoped that the respondents would act to honour - the statement of their learned counsel. Now that the matter is being disposed of we diréct the council to carry out its statement made before this Court within three months from the date from’ today.

: RP. No.- 80/76 in S.LP. 702/76: “Dr, T.S. Raman filed ~ the writ ‘petition in the Delhi High Court challenging the selection and appointment of respondent No.. 6 as Senior Biochemist cn allithe grotinds which were urged by Dr. ¥.P. Gupta in his writ petiten,

There is also an additional point in-his favour in that even though the | first ‘Selection Committee constituted’. to select’ a Senior Bicchemist - had directed that the ‘second Selection Committee shou!d interview

-Dr. T.S. Raman along with other candidates, no intimation was sent _to him about the date and time of the interview and he did not. have the benefit of the interview by the second Selection Commitice . '. which: recommended respondent’ No. 6 Dr. Mehta for the post of Senior Biochemist.’Dr.'T.S. Raman questicred the cesreciress end: validity of the selection of Dr. $.L. Mehta; respondent Na. 6 in Special Leave Petition 702/76 whch was heard.and disposed of along with the — writ petition of Dr. Gupta and met with the same fate. Dr. Raman preferred S.L.P. No: 702/76 which was dismissed by this Ccprt on

August 30, 1976. ‘Thereafter, he filed. Review Petition No? 80/76

San)

P. Ke IYER ¥. UNION Dest, J. y : " , 239

. which was directed to be heard in this group of petitions. The reasons which found favour with us for reviewing the decision of this Court dismissing the S.L.P. No. 2339/75 preferred by Dr. Gupta and admitting it and disposing it on merits would mutatis mutandis apply to. the review ‘petition of Dr. T.S. Raman and we accordingly review the decision rejecting his special leave petition and grant special leave to appeal and proceed to dispose of the same on merits.

Ordinarily Dr. Raman ‘should get, the same’ relief which Dr.

Gupta is held entitled to, but certain facts were brought to cur notice which necessitate a consideration of Dr. Raman’s case slightly differently. Before we proceed to examine Dr. Raman’s case, it”

may.be noted that the High Court found fault with Dr. Reman in not informing the concerned authority about the change in his address and therefore, if Dr. Raman did. not receive the intimaticn for interview, he should thank himself. This approach does not commend to us. Dr..Raman was still in the employment of the. Institute at the time when the Secogd . Selection Committee’ decided to interview candidates and in view of the findings of the first Selection Committee, Dr. Raman was entitled as a matter of right to be called for interview. The High Court observed that Dr. Raman neither applied for the post nor appeared for the interview before the second.Selection Ccmmittee. This is begging the issue because the High Ccurt wholly overlooked the proceedings of the first Selection Committee in which

_ it was decided that without any fresh applicaticn from Dr. Raman, he would be considered to be a candidate before the second Selectien Committee and would be called for interview. There is a further confession in the’ observation of the High Court when it states that’ Dr. Gupta and Dr. Raman were both at the relevant time working

_. in the Biochemistry Department of the Institute and-that Dr. Gupta appeared for the interview before the Second. Selection Committee . while Dr. Raman failed to do sv and he cannot make a grievance about his own lapse. If Dr. Raman was at the relevant time attacked to the Institute and was working with the Institute, We see no justi- . - fication’ for the ministerial side of the Institute not informing Dr,

Riman to appear. for interview. The lapse was on the part of the Selection Committee and the same cannot be wished away.. The

High Court was clearly in error in observing that either Dr. Raman _ was not hopefui of getting the job of he had some other reasons for not applying for the same and therefore his grievance cannot be entertained. This is clearly contrary 1o record: He had applied earlier and was entitled to be called for interview as noted in the’ proceedings. “It was obligatory upon the secord Selecticn Committee.

~ 240 - ee SUPREME couRT REPORTS. _ {i984 2S.CR.

ry to infor m’ Dr. Raman to’ appear. for the- interview and‘adequate steps

‘ should have bsen'taken to give the intimation because he was attached to the Institute and was in active. service of the Institute and intimation so to tim would not require any fierculean effort on the part of the

Committee. If the matter were to rest here, we. would have unhesta-° . " . tingly ‘given ‘the same relief which Dr, Gupta is held entitled to, but cértain additional facts were put on ) record. which necessitate a’ different, approach. °

, it may be recafled that since the revision, of the scale attached

. to "the post of Professor to Rs, 1100-1600, further promotion was to .

“the ‘scale of Rs, 1500-2000 and the next promotional stage -was

Rs. 1890-2250, Tt now transpires that Dr. Raman was made a member of “Agricultural Research Science (ARS) with effect from October 2," 1975 and he was put in the sca'e.S-2 Rs, 1100-1600 from the game’

date... Ruls..19 of the Agricultura! Research Service Rul es provided

” for. promotion. from one grade to next higlicr grade on the ‘basis of.

assessment of performance by. Agricultural Scientific Recruitment

Board (ASRB). The screening for the purposé -of . promotion to-

-higher grade is periodically undertaken’every. year as far.as practicable somewhere in January or soon thereafter. “Such. a screening was’. undertaken on October 26, 1977 by the Assessment Committee appoitit- ted by. the. Chairman of ASRB.. The period under. Assessment was upto and inclusive of December 31, 1975. Unfortunately, Dr. Raman -

" was not recommended by the Committeé for ‘promotion to $-3 grade i.e, R's: 1500-2000; but instead ‘of promotion to-the higher.grade, the °

-' Committee recommended that two advance increments be granted oo to Dr..Raman which recommendation was carried out with effect a from July 1, 1976. -Against the assessment by the Assessment Com-

" miltec, Dr.. Raman made: represéntation claiming that -he was eligible for promotion to 8:3 .grade. This representaticn wes rejected. ‘by the’ Director General concurring with the assessment imede by the Assessment’ “Committee which did net find ‘Dr. Raman fit for promo: ‘tion- to 8-3 grade. Ta 1978 Dr. Ranian was requestcd to giye sup- plementary information ‘about _the research work underiaken by | him for assessment for ‘promotion to S-3 grade. In the, meeting of .

the Assessment Committee held on’ May 28, 1980, the informaticn supplied by Dr. Raman-was_ held to ‘be insufficient and this can be culled: out. from the observation’ of the Committee. (hat Dr. Raman ‘could not be assessed for want. of: material and CCRs for all the

_years’. The case of Dr. Raman for promotion to S-3 grade again came up before the Assessment Committee which met on April 22,.

. _ 1982 and the Committee noted its’ decision conveyed by the ‘words

_ P. K. IYER ¥. UNION (Desai, J.) 24)

“no change’. Now these assessments are not questioned in the writ petition. filed by Dr. Raman and these are later developments and therefore, it would be difficult to give Dr. Raman any benefit at this stage wholly ignoring the later developments

The learned counsel for the ICAR after succintly pointing | out the facts hereinbefore mentioned, submitted that it is not possible to accord same treatment to Dr. Raman on par with Dr. Gupta wholly ignoring later developments. He however frankly and fairly stated that if the Court directs, the Institute has no objection to appointing afresh Committee for making a fresh assessment for ascertaining the suitability of Dr. Raman for promotion to S-3 grade on the basis of the material regarding work done and achievements made by him for the period commencing from December 31, 1976 upto the period © he has been assessed or uptil now. It was further submitted that if the special Assessment Committee which may be set up to examine the case of Dr. Raman recommends his promotion to S-3 grade, the same can be given to him with effect from Ist of July of the year following the year upto which he submits his work done and other achievements, Dr. Raman is in the grade of Rs. 1100-1600 since 1975. A period of 8 years has rolled by. He is undoubtedly a highly qualified person. It is equally true that he has been assessed thrice and found wanting for promotion to the higher grade. However, we appreciate the fair attitude adopted by the learned cotinsel in this behalf and accordingly direct that the Institute shall set up a special Assessment Committee to assess the suitability of Dr. Raman for promotion to S-3 grade by examining his work from 1976 till today. This may be done within a period of three months from today.

Except for what we have recommended in the foregoing paragtaph, it is not possible to give Dr. Raman any other relief which Dr. Raman would have been held entitled on the ground that it was

‘an error of the second Selection Committee not to have interviewed him or not to have considered his case in absentia as directed by the, first selection Committee. Though, the lapse was on the part of the respondents, the resultant situation has become irremediable and irreversible. Therefore, with the observations and. directions made in the foregoing paragraph, the appeal arising from the special leave petition of Dr. Raman fails and is dismissed.

Re: C.A. No. 1043/81: Appellant Om Prakash Khauduri after obtainirtg post-graduate degree in the discipline ‘Operaticnal Research’ in 1973-74 joined the post of Senior Computer in Indian

242 SUPREME COURT REPORTS [1984] 2 s.c.r.

Agricultural Statistics Institute, an affiliate of ICAR on December 4, 1975. The Agricultural Scientists Recruitment Board (‘ASRB’ for short) has been constituted by the ICAR with the approval of the Government of India as a recruiting agency for the various posts in Agricultural Research Service (ARS’ for short). ASRB issued an advertiscment intimating that it would hold competitive public ” examination in 1978 to recruit scientists to be appointed under various

_ disciplines of ‘ARS’. For the information of the intending candi-

‘dates, ASRB made available the rules framed by the JCAR on August 19, 1977 (1977 Rules’ for short) setting out the terms and conditions for admission to the competitive examination and the criteria fcr selection of successful candidates etc. The competitive examination was to consist of written test having 600 marks followed by a viva voce test carrying 100 marks. The final selection was to be done according to the merit list, which would be arranged by the ASRB’

in the order of merit in each category as disclosed by the aggregate marks finally awarded to each candidate as per Rule 14 of 1977 Rules. In response to the advertisement, petitioner applied on Oct. 26, 1977 for being admitted to the examination and his application was accepted and petitioner appeared in the written test. He secured 364 marks out of 600 in the written test which qualified him for being called:

for viva voce test. ‘In all 20 candidates including the petitioner were selected for. viva voce test. After the viva voce test, the ASRB declared the names of 13 candidates as successful and finally selected them for ARS in the discipline ‘Agricultural Statistics’. The petitioner was not among the successful candidates. In fact, nearly 21 vacancies were left unfilled by the ASRB. Petitioner contends that ASRB contravened Rules 13 and -14 by prescribing minimum marks for qualifying at viva voce test at 40 out of 100 and those who did not secure 40 marks, even if on aggregate of the marks were eligible for being included in the merit list, such candidates were wrongly excluded from the merit list. Petitioner further conteds that the merit list prepared in contravention of Rules 13 and 14 and the resultant | selection based on such illegal and invalid merit list is lable to be quashed and a mandamus be issued directing the respondents to

- prepare a fresh merit list in accordance with Rules 13 and 14. The stitioner made various representations and he was satisfied that the ASRB had accepted the same method of preparirg the-merit list as the UPSC which followed the. method of arranging the merit list according to the aggtegate marks obtained at the written test and viva voce test and if the merit list was prepared acccrding to that method, he was eligible for being selected for one‘of the vacancies . in ARS. Petitioner continued his search for justice and ultimately

P. K. IYER V. UNION (Desai, J.) 243 he filed a Writ Petition No. 553/80 in the High Court of Delhi for the above mentioned reliefs. A Division Bench of the High Court .

held that the law as it then stood was clear that a Society registered under the Societies Régistration Act was not other authority within meaning of the expression under Art, 12 and that as ICAR js a society, writ jurisdiction cannot be invoked against it and on this short ground writ petition filed by the petitioner was rejected in limine. Hence this appeal by special leave.

The natrow question that falls to be determined in this appeal is whether under the relevant rules ASRB can prescribe minimum qualifying marks which a candidate must obtain at the viva voce test before his name can be included in the merit Jist on the basis

_Of aggregate marks obtained by him as required by Rule 14 of the | 1977 Rules 2

ASRB has been set up as a separate and independent agency for recruiting personnel for IASRJ, an affiliate of ICAR. A com- | petitive examination was held in 1978 to recruit scientists to be appointed under various disciplines of ARS including the discipline ‘Agriculture Scientists’. There wete 34 vacancies in this discipline. Selection was to be made by competitive examination comprising written test carrying 600 marks in the aggregate and viva voce test carrying 100 marks. The written test is held first and those who qualify in the written test alone ate eligible to be called for viva vcce est. It is alleged and not controverted that ASRB prescribed

- that anyone to be eligible for being admitted in the merit list on the basis of aggregate marks should also have the additional qualification of atleast obtaining 40 marks in the viva voce test. It is seriously contended that this additional qualification does not have the authority of law, and that it was arbitrarily devised without any rationale behind it.

The relevant rules are Rules 13 and 14 of the 1977 Rules, which may be extracted :

“13. Candidates who obtain such minimum marks in the ° the written examination as may be fixed by the Board in their discretion shall be summoned by them for viva voce,

14, After the examination, the candidates will be arranged by the Board in the order of merit in each category

244 SUPREME COURT REPORTS [1984] 2 S.CR.

(professional subject-wise) as disclosed by the aggregate marks finally awarded to such candidate and such ‘ candidates as are found by the Board to be qualified by the examination shail be recommended for appoint-_ ment upto the number of unreserved vacancies decided to be filled on the result of the examination.” Mr. Ramchandran, learned counsel for the petitioner contended that Rule 13 does not.cnvisage obtaining of minimum marks at the

_ viva voce test even though it contemplates obtaining minimum marks at the written test so as to be eligible for being called for viva voce

‘test. Jt was further urged that Rule 14 specified the manner in which merit list is to be arranged. Rule 14 provides that after both written and viva voce tests are held, the candidates will be arranged by the Board in the order of merit in each category (Professional subjectwise) as disclosed by the aggregate marks finally awarded 1o each candidate and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the nuniber of unreserved vacancies decided to be filled on the result

_ of the examination. On a combined reading of Rules 13 and 14, two things emerge. It is open to the 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 and he becomes eligible for being called for viva voce test, he-has to appear at the viva voce test. Neither Rule 13 nor Rule 14 nor any other rule enables th candidate at the viva voce test. On the contrary, 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 fina! merit list would be drawn up according to the aggergate of marks obtained by the candidate in written test ‘plus viva voce examination. The additional qualification which ASRB prescribed to itself namely, that the candidate must have a further qualification of obtaining minimum marks in the viva voce test does not find place in Rules 13 and 14, it. amounts virtually to a’ modification of the Rules. By necessary inference, there was no such power in the ASRB to add to the required qualifications. 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 irreparable and irreversible harm. It however does not appear in the facts of the case before us that because of an allocation of 100 marks for

~ ASRB to préscribe minimum qualifying marks io be cbtained by the .”- wake

P. K. IYER ¥, UNION (Desai, J.) 245 wiva voce test, the result has been unduly affected. We -say so for want of adequate material on the record. In this background we ate not inclined to hold that 100 marks for viva voce test was unduly high compared to 600 marks allocated for the written test. But the ASRB in prescribing minimum 40 marks for being qualified for viva

‘ voce test contravened Rule 14 inasmuch as there was no such power in the ASRB to prescribe this additional qualification, and this prescription of an impermissible additional qualification has‘a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidate at written test plus viva voce test. Once an additional qualification of cbtaining _ 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. To illustrate, a candidate who has obtained 400 marks at the written test and obtained 38 marks, at the viva voce test, if considered - on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the ground that he has not obtained qualifying marks at viva voce test. This was impermissible and contrary to Rules and the merit list prepared in contravention of the Rules cannot be sustained.

It may at this stage be pointed out that thé Union Public Service Commission has framed its rules relating to competitive examination

‘held by. it in 1978 to recruit personnel to Indian Economic Service and the Indian Statisical Service. Rule 12 and 13 are relevant for this purpose, Briefly, it may be stated that rule 12 authorises the Com- | mission to prescribe minimum qualifying marks for the written * examination to be fixed by the Commission at its discretion. It further appears that those. who obtain the minimus’ qualifying marks will be eligible for being called for viva voce test. Rule 13 provides that after the examination i.e. both the written test and the viva voce test, the candidates will be arranged by the Commission in the order of merit as disclosed by the aggregate marks finally awar-

.ded to each candidate and in that order so many candidates as are found by the Commission to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacances decided to be filled on the result of the examination. There is a proviso to this rule which is immeterial. It appears that when the petitioner drew attention of the ICAR that in prescribing the additional qualification of minimum, marks to be obtained by the candidates at the viva voce test and not preparing the merit list according to the aggregate of marks by excluding those candidates who re]

246 SUPREME COURT REPORTS [1984] 2 s.c.r.

had not obtained minitnum qualifying marks at the viva voce test® it contravened Rules 13 and 14 and more particularly Rule 14, the ICAR referred the matter to UPSC and enquired about the procedure followed by it. There is an admission in the counter-affidavit of |

Mrs. Rathi Vinay Jha, Secretary, ICAR and Deputv Secretary, Government of India, Department of - Agricultural Research and Education, Ministry of Agriculture and Rural Reconstruction that after the UPSC intimated its procedure, the matter was placed before the Committee of ARS at its meeting held on July 11, 1979. Subsequently, the President, ICAR approved the procedure followed ‘by the UPSC and recommended by the Committee of ARS, and the revised procedure was adopted for the examination held in January, 1981. The revised procedure eliminates obtaining of minimum qualifying maiks at viva voce test. May be that the ICAR has corrected itself but what about the damage done to the petitioner and those similarly situated. :

. It is not possible at this Jate stage to reject the entire selection on the ground that the -ASRB committed a serious legal error in prescribing minimum qualifying marks at the viva voce test and drawing up merit list on this impermissible method. It would be .

equally improper to disturb the selection of those who had been selected and appointed way back in 1978. Even though it is true that a serious legal error has been committed in drawing up the merit list, at this late stage, it would be unwise to reject the entire selection, disturbing those who are already selected and may have put in service ‘of not less than 5 years. But it is crystal clear that 21 vacancies were kept unfilled. It is not made clear whether the petitioner has been selected at any later selection. If he is selected at the later selection, nothing further is required to be done: But if he is not selected, the ASRB may draw the merit list in respect of remaining 21 unfilled vacancies from amongst ‘those who were called for viva voce test and who were not selected because some of them like petitioner did not obtained, minimum qualifving marks at viva voce test. The merit list may be drawn in respect of those who though called for viva voce did not qualify for being put in the merit, ignoring the concept of minimum qualifying marks a merit list in respect of them be drawn: up onthe basis of aggregate marks. If there is a vacancy, and if the petitioner comes within the zone of selection on the- aggregate of marks obtained by him, his case shall be considered fot appointment prospectively, and not retrospectively. This is the only relief which we are inclined to grant to the petitioner.

wee

P. K, IYER ¥. UNION (Desai, J.) 247

That is the end of the journey, -Jt is better to draw-up here the directions in respect of each of the petitioner.

In Writ Petition No. 587/75, the ICAR is directed on- their _ concession and by a mandamus of this Court 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.

In Special Leave Petition No. 2339/75, the ICAR is directed by a mandamus of this Court 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. §.L. Mehta. The arrears payable pursuant to the direction shall be paid within 3 months from today.

-Further the ICAR is directed to carry out the statement made by its learned couns:] Mr, Lokur of taking back Dr. Y.P. Gupta as a member of the Faculty of post-graduate sthool of IARI within a period of 3 months from today.

In S.L.P. No. 702/76, it is directed on the concession of the learned counsel for the. ICAR that a special. Assessment Committee may be set up to examine the case of Dr. T.S. Raman for promotion to S-3 gradé within a period’ of 3 months.* Dr. T.S. Raman is not entitled to any further relief in his special Jeave petition.

In C.A. 1043/81, the ICAR and ASRB arte 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 as directed herein and if there is a vacancy and the appellant/petitioner comes within the zone cf selection he shall be appointed to one such vacancy. The appointment would be prosp2ctive and ‘would be ‘effective from the date of the appointment but this is subject to the condition that if the appellant/petitioner is already selected at a later selection, nothing more is required ta be done.

We order accordingly. The respondent shall pay the costs. of the petitioners in each petition.

N.V.K. Appeals & Petitions allowed.