PETITIONER:
P.K. RAMACHANDRA IYER & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT16/12/1983
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
ERADI, V. BALAKRISHNA (J)
CITATION:
1984 AIR 541 1984 SCR (2) 200
1984 SCC (2) 141 1983 SCALE (2)1060
CITATOR INFO :
E 1984 SC1905 (1)
R 1986 SC 157 (59)
RF 1987 SC2086 (18)
R 1987 SC2267 (10)
RF 1988 SC 469 (11,12)
D 1988 SC1291 (9)
RF 1989 SC 19 (23)
RF 1991 SC1173 (5)
D 1992 SC 76 (3,8,9)
ACT:
Constitution of India, 1950 Articles 12 and 32-Indian
Council of Agricultural Research-Whether instrumentality of
Central Government-Whether covered by the expression other
authorities-Whether amendable to writ jurisdiction
Articles 14, 16 and 39(d)-Pay scale of post of
Professor revised-Existing incumbents not granted the
benefit of revised scale-New incumbents granted the revised
scale-Defence of employer was there was marginal revision in
qualifications for the post-Action whether discriminatory
and unfair.
Articles 16-Selection Committee-Whether has power to
relax essential qualifications for the post-jurisdiction of
Courts to interfere with decision of Selection Committee-
When arises.
Malafides-Selection Committee-Qualification requirement
relaxed to suit preferred candidate-Selection whether
vitiated.
Public employment-Experience to be of value and utility
must be acquired after educational qualification obtained-
Not while acquiring post-graduate qualification.
Indian Council of Agricultural Research 1977, Rules 13
and 14: Fixation of minimum qualifying marks for eligibility
for viva-voce test-Further fixation of qualifying marks to
be obtained at viva-voce for final selection-Validity of.
Supreme Court Rules 1966 Order XL & Constitution of
India, 1950 Article 137: Writ petition dismissed by High
Court allowing preliminary objection that it had no
jurisdiction to entertain petition-High Court becomes
functus officio and decision on merits inconsequential-
Supreme Court in later case over-ruling the same preliminary
objection-Supreme Court entitled to examine matter on
merits-Review Petition maintainable.
HEADNOTE:
The Royal Commission of agriculture constituted in 1926
recommended the setting up of the Imperial council of
Agricultural Research-ICAR. In July 1929, ICAR was
registered as a society with its office in the Secretariat.
It was wholly financed by the Government of India. By a
resolution dated January 5, 1939 the Government of India
modified the status of ICAR from a department of the
Secretariat to one of an attached office of the Government
of India. Recruitment to various posts in ICAR was made
through the Federal Public Service Commission. Its expenses
were voted upon as part of the expenses incurred in the
Ministry of Agriculture. The control of the Government of
India permeated
201
through all its activities. To it was transferred the
Research Institutes set up by the Government of India. In
order to make it financially viable a cess was levied and
the proceeds were handed over to ICAR for its use.
On the advent of independence, the Imperial Council of
Agricultural Research was redesignated as Indian Council of
Agricultural Research. With effect from April 1, 1966
administrative Control over IARI and IVRI and other
institutes was transferred to ICAR.
Rule 18 of the ICAR Rules provided that the Society
shall establish and maintain its own Office, Research
Institutes and Laboratories and that the appointments to the
various posts should be made in accordance with the
Recruitment Rules framed by the Government Body. This rule
which was kept in abeyance in January 10, 1966 was brought
into operation in its entirety effective from April 1, 1974.
The consequences of this rule becoming operative was that
the Secretariat of ICAR ceased to be an attached office of
the Ministry of Food and Agriculture.
The Indian Veterinary Research Institute was one of the
institutes under the administrative control of ICAR. The
post of Professor in IVRI in 1958 carried the pay scale of
Rs. 700-1250. There were 6 posts of Professor in various
disciplines. Three posts of Professors were held by the
petitioners in Writ Petition No. 587/75. On the introduction
of the pay-scales recommended by the University Grants
Commission, the pay-scale attached to the post of Professor
in the Institute was revised to Rs. 1100-1600 during the
year 1970-71 and six new posts of Professors in various
disciplines created. Each of the petitioners who was already
holding the posts of Professor was not given the benefit of
the upgraded pay-scales, while the new incumbents recruited
to the newly created post were awarded the revised pay-
scales. This led to disturbance in the inter se seniority in
the cadre of Professors. In the Writ Petition W.P. No.
587/75 to this Court it was contended that as the
petitioners fulfilled the minimum qualification prescribed
for the post after upward revision of the pay-scales, denial
of the revised pay-scales was discriminatory and violative
of Article 14, and throughly arbitrary and unjustified.
On behalf of respondents it was asserted that the
revised scale was not to be automatically granted to the
petitioners-the existing holders, as the newly created posts
in the cadre of Professor was not the same as the existing
post, as there was marginal revision in the qualifications
for the post of Professor in the revised scale.
The petitioner in the Review Petition No. 4/77 sought
the review of the judgment of this Court dated 3rd October,
1975 in the Special Leave Petition No. 2339/75. He had filed
a writ petition in the High Court questioning the
correctness of the selection of respondent No. 6 for the
post of Senior Bio-Chemist as he did not possess the
essential qualification, and the order removing him from the
membership of the post-graduate faculty of Indian
Agriculture Research Institute. This petition was resisted
by the respondents on the ground that neither ICAR nor IVRI
was either a ‘State or other authority’ within the meaning
of the expression in Article 12 of the Constitution. It was
further contended that the Selection Committee had the power
to relax the essential qualifications pertaining to
experience, and that the Committee consisted of experts who
were highly qualified persons, able at evaluating and
assessing the relative merits of each of the candidates, and
that, it would be unwise to substitute expert’s decision by
Court’s decisions. The Writ Petition was dismissed by the
High Court on the ground that ICAR being
202
a society registered under the Societies Registration Act,
it was neither a ‘State or other authority’ within the
contemplation of Article 12. It was further held that the
relationship between the petitioner and ICAR was governed by
the rules and the bye-laws of the Society and ICAR was free
to fill the post of Senior Bio-Chemist in any manner it
liked, and that as the petitioner was not removed from the
membership of the Faculty, but ceased to be a member, it was
not necessary to hear him.
This Court upheld the decision of the High Court by its
judgment in S.L.P. No. 2339/75 and also rejected R.P. No.
79/76.
The Petitioner in Review Petition No. 80/76 sought
review of the judgment in S.L.P. No. 702 of 1976 which was
disposed of along with S.L.P. No. 2339/1975.
The appellant in C.A. No. 1043 of 1981 filed a writ
petition in the High Court alleging that he was selected for
the post of Senior Computer in the Indian Agriculture
Statistics Research Institute, an affiliate of ICAR. The
ICAR set up the Agricultural Scientists Recruitment Board-
ASRB which framed rules in 1977 and decided to hold a
competitive examination in 1978 to recruit scientists.
Selection was to be made by a competitive examination
comprising a written test carrying 600 marks in the
aggregate and viva-voce test carrying 100 marks. It was
further provided that anyone to be eligible for being
admitted in the merit list should also have the additional
qualification of at least obtaining 40 marks in the viva-
voce test. The appellant contended that he has secured 364
marks out of 600 in the written examination and 38 marks out
of 100 in the viva-voce test, and that the action of Board
in fixing minimum qualifying marks in the viva-voce
examination and basing the final selection on this criterion
lacked both the authority of law and rules. The High Court
dismissed the Writ Petition in limine.
Allowing the Review Petitions, Writ Petition and
Appesal:
^
HELD : 1. (i) In writ petition No. 587/75, the ICAR is
directed by a mandamus to put the three petitioners in the
revised scale of Rs. 1100-1600 sanctioned for the post of
Professor effective from the day when others selected as
Professors in sister disciplines were awarded the revised
scale of Rs. 1100-1600. [247 A]
(ii) In Special Leave Petition No. 2339/75, the ICAR is
directed by a mandamus to award to Dr. Y.P. Gupta the scale
of Rs. 1800-2250 from the date the same was given to
respondent No. 6, Dr. S.L. Mehta. The arrears payable
pursuant to the direction shall be paid within 3 months. Dr.
Y.P. Gupta to be taken back as a member of the Faculty of
the post-graduate school of IARI within a period of 3
months. [247 B]
(iii) In S.L.P. No. 702/76, it is directed that a
special Assessment Committee may be set up to examine the
case of Dr. T.S. Raman for promotion to S-3 grade within a
period of 3 months. [247 D]
(iv) In C.A. 1043/81, the ICAR, and ASRB are directed
to prepare the merit list in respect of those candidates who
were called for viva voce test, but were not included in the
merit list on the aggregate of marks obtained by them. If
there is a vacancy and the appellant comes within the zone
of selection he shall be
203
appointed. The appointment would be prospective and would be
effective from the date of the appointment. [247 E-F]
2. (i) Apart from the criteria devised by the judicial
dicta, the very birth of ICAR and its continued existence
over half a century and its present position would leave no
doubt that ICAR is almost an inseparable adjunct of the
Government of India having an outward form of being a
Society. It could be styled as a Society set up by the State
and therefore, would be an instrumentality or agency of the
Central Government and therefore, it is ‘other authority’
within the meaning of the expression in Article 12, and the
writ jurisdiction can be invoked against it. [216 B]
(ii) ICAR came into existence as an integral department
of the Government of India and later on became an attached
office of the Central Government. The composition of the
ICAR as evidenced by Rule 3 could not have been more
governmental in character than any department of the
Government. The Governing Body of the Society consist of a
President of the Society, who is none other than a Cabinet
Minister of the Government of India. Other members of the
Governing Body are eminent scientists not exceeding nine in
number to be appointed by the President; there is none
outside the Government in the Governing Body. Rule 98 makes
it abundantly clear that the Rules of the Society can
neither be altered nor amended except with the sanction of
the Government of India. Rule 100 shows that the Rules
became operative after they were approved by the Government
of India. The audited accounts of the Society along with the
auditor’s report thereon were to be placed before the
Society at its Annual General Meeting and also on the table
of the Houses of Parliament. Rule 18 provides that the
appointment to various posts under the Society shall be made
in accordance with the Recruitment Rules framed for the
purpose by the Governing Body with the prior approval of the
Government of India. The administrative and the financial
control of the Government is all pervasive. The rules and
bye-laws of the Society can be framed, amended or repealed
only with the sanction of the Government of India. [219 E-F;
220 B-F]
Sabhajit Tewary v. U.O.I. [1975]3 SCR 616 distinguished
and limited and U.P. Warehousing Corporation v. Vijay Narain
[1980] 3 SCC 459, referred to.
3. The guarantee of equality in all its pervasive
character enables this Court to remove discrimination and to
restore fair play in action. [226 C]
The instant case, is a glaring example of
discriminatory treatment accorded to old experienced and
highly qualified hands with an evil eye and unequal hand. No
attempt was made to sustain the scales of pay for the post
of Professor on the doctrine of classification because the
classification of existing incumbents as being distinct and
separate from newly recruited hands with flmsy change in
essential qualification would be wholly irrational and
arbitrary. The case of the petitioners for being put in the
revised scale of Rs. 1100-1600 from the date on which newly
created posts of Professors in sister disciplines in IVAI
and other institutes were created and filled in revised
scale is unanswerable and must be conceded [226 B-D]
Randhir Singh v. U.O.I. [1982] 1 SCC 618, referred to.
4. The moment the High Court held that it had no
jurisdiction to entertain he writ Petition, it became
functus officio and therefore, its decision on the merit
204
of the contention is of no consequence and at any rate could
not conclude the matter. Now that it has been held that the
writ petition is maintainable on the finding that ICAR and
its affiliates are other authority within the meaning of the
expression in Article 12, justice demands that the court
must examine the contentions on merit. The preliminary
objection over-ruled and the review petition allowed. [229
F-G]
5. It is well-settled that experience to be of value
and utility must be acquired after the educational
qualification is obtained and not while acquiring the
postgraduate qualification. [232 A]
In the instant case, preparing thesis after graduation
for acquiring post graduate degree would not count towards
prescribed experience qualification. In the case of Ph.D
degree awarded on research the situation may be different.
[232 B]
6. The Court must look with respect upon the
performance of duties by experts in their respective fields.
However, the task of ushering a society based on rule of law
is entrusted to this court and it cannot abdicate its
functions. Once it is most satisfactorily established that
the Selection Committee did not have the power to relax
essential qualification pertaining to experience, the entire
process of selection of the 6th respondent was in
contravention of the established norms prescribed by the
advertisement and power of the Selection Committee and
procedure for fair and just selection and equality in the
matter of public employment and to rectify resultant
injustice and establish constitutional value this Court must
interfere. [234 D-E]
State of Bihar v. Dr. Asis Kumar Mukherjee [1975] 2 SCR
894, referred to.
In the instant case, the first Selection Committee
examined the suitability of seven candidates including the
petitioner and specifically recorded its finding that none
of the candidates interviewed or considered in absentia
including respondent No. 6 who was selected at a later
stage, fulfilled all the essential qualifications laid down
for the post. The Committee recommended that the post be re-
advertised after amplifying the essential qualification in
the matter of experience, viz. 10 years research experience
in the field of protein Chemistry’. The post was the post of
Senior Bio-chemist. Initially experience required was in the
field of Nutrition with particular reference to quantity and
quality of protein in food grains as evidenced by published
work while the amplified essential qualification was
research experience in the field of protein Chemistry. It is
difficult to efface the impression that the amplification
was done keeping in view the qualification which respondent
No. 6 had. Moreover respondent No. 6 appeared not to carry
on research in the line of Nutrition or protein Chemistry
and therefore he did not fulfil the qualification at all and
he could not therefore have even been called for interview
by the Selection Committee. The Selection Committee also did
not have the power to relax the essential qualification, for
the post. The selection of respondent No. 6 is contrary to
rules and orders and in violation of prescribed norms. He
was ineligible for the post when selected and his selection
and appointment has to be quashed and set aside. [230 C-G,
233 E-F, 234F]
7. The High Court was clearly in error in observing
that either Dr. Raman (petitioner in R.P. No. 80/76) was not
hopeful of getting the job or he had some other reasons for
not applying for the same and therefore his grievance cannot
205
be entertained. This is clearly contrary to record. He had
applied earlier and was entitled to be called for interview
as noted in the proceedings. It was obligatory upon the
second Selection Committee to inform him to appear for the
interview and adequate steps should have been taken to give
the intimation because he was attached to the institute and
was in active service of the institute and intimation to him
would not require any herculean effort on the part of the
Committee. But he has been assessed thrice by the Assessment
Committee for promotion to S-3 grade and found, wanting. The
Institute shall set up a special Assessment Committee to
assess his suitability for promotion to S-3 grade by
examining his work from 1976. He is not entitled to any
further relief. [239 G-240A, 241 E]
8. A combined reading of Rules 13 and 14, indicate
that, it is open to the Agricultural Scientist Recruitment
Board to prescribe minimum marks which the candidates must
obtain at the written test before becoming eligible for
viva-voce test. After the candidate obtains minimum marks or
more at the written test he becomes eligible for being
called for viva-voce test, and he has to appear at the viva-
voce test. Neither Rule 13 nor Rule 14 nor any other rule
enables the ASRB to prescribe minimum qualifying marks to be
obtained by the candidate at the viva-voce test. The
language of Rule 14 clearly negatives any such power in the
ASRB when it provides that after the written test if the
candidate has obtained minimum marks, he is eligible for
being called for viva-voce test and the final merit list
would be drawn up according to the aggregate of marks
obtained by the candidate in written test plus viva-voce
examination. [244 D-F]
In the instant case, (CA No. 1043/81) the additional
qualification which ASRB prescribed to itself that the
candidate must have a further qualification obtaining
minimum marks in the viva-voce test does not find place in
Rules 13 and 14. If such power is claimed, it has to be
explicit and cannot be read by necessary implication for the
obvious reason that such deviation from the rules is likely
to cause irrepearable and irreversible harm. Once an
additional qualification of obtaining minimum marks at the
viva-voce test is adhered to, a candidate who may figure
high-up in the merit list was likely to be rejected on the
ground that he has not obtained minimum qualifying marks at
viva-voce test. This list prepared in contravention of the
Rules cannot be sustained. However, it is not possible at
this late stage to reject the entire selection and it would
be equally improper to disturb the selection of those who
had been selected and appointed way back in 1978. If there
is a vacancy and if the appellant comes within the zone of
selection on the aggregate of marks obtained by him, his
case shall be considered for appointment prospectively and
not retrospectively. [244 G-H; 245 C; 246 D; G]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 587 of 1975
(Under article 32 of the Constitution)
with
Review Petition No. 4 of 1977
(@SLP (Civil) No. 2339 of 1975 &
Review Petition No. 79/76)
206
and
Review Petition No. 80 of 1976
(Arising out of SLP (Civil) No. 702 of 1976)
and
Civil Appeal No. 1043 of 1981
Appeal by Special leave from the Judgment and Order
dated the 8th May, 1980 of the Delhi High Court in Civil
Writ Petition No. 553 of 1980.
Yogeshwar Prasad and Mrs Rani Chhabra for the
Petitioner in WP. 587/75 & RP. No. 4/77
M.G. Ramachandran for the Appellant in CA. No. 1043 of
1981.
Abdul Khader, Miss A. Subhashini and Girish Chandra for
the Respondent in WP. 587/75.
K.G. Bhagat, Addl. Sol. General and Ms. A. Subhashini
for the Respondent in RP. No. 4/77
D. Goburdhan and C.V. Subba Rao for Respondent in CA.
No. 1043 of 1981.
B.N. Lokur, and C.N. Ratnaparkhi for Respondents 2-7 in
WP No. 587 of 1975.
Judgment of the Court was delivered by
DESAI, J. In this group of writ petition, civil appeal,
special leave petition and review petitions; a common
question of law is raised whether Indian Council of
Agricultural Research (`ICAR for short) and its affiliate.
Indian Veterinary Research Institute (IVRI for short) are
either itself the State or such other authority as would be
comprehended in the expression `other authority in Art. 12
of the Constitution ?
Re: W.P. No: 587/75 :
Petitioner No. 1 was Professor of Animal Pathology,
petitioner No. 2 was Professor of Animal Genetics and
petitioner No. 3 was
207
Professor of Veterinary Parasitology, all attached to IVRI.
Six posts of Professors one each in Animal Pathology, Animal
Genetics, Veterinary Parasitology, Animal Nutrition,
Bacteriology and Physiology were created on the introduction
of the post-graduate wing in IVRI in 1958. At the relevant
time the post of Professor carried the scale of Rs. 700-
1250. Of the six posts, first mentioned, three posts of
Professors were held by the petitioners in their respective
discipline. On the introduction of the scales recommended by
the University Grants Commission, the pay scale attached to
the post of Professor in IVRI was revised to Rs. 1100-1600.
After the upward revision during the year 1970-71, the cadre
of Professors in IVRI was expanded by creating six new post
of Professors in various disciplines. Surprisingly, act of
the petitioners, who was already holding post of Professor,
was not given the benefit of the upgraded scale attached to
the post of Professor while on the other hand the new
incumbent recruited in the newly created posts in the year
1970-71 were awarded the revised scale of Rs. 1100-1600.
This led to the disturbance in the inter se seniority in the
cadre of Professors and manifested an anomalous position
that the old incumbents of the posts of Professors such as
petitioners, continued in the pre-revised scale of Rs 700-
1250 while the new incumbents were put in the revised scale
of Rs 1100-1600 both having the designation of Professor and
there is no appreciable difference in the qualifications
attached to the post. When this was brought to the notice of
the authorities concerned, the ICAR with the concurrence of
the Ministry of Finance resolved as per decision dated April
6, 1972 to award the revised scale of pay attached to the
post of Professor to the petitioners, but this was subject
to the condition that it would not be automatic but the
existing incumbents of posts may be considered for revised
scale along with other suitable persons. It was implicit in
the condition prescribed that the petitioners will have to
stand in competition with others applications, if there be
any, and go through the hazard of a fresh selection for the
post each one was already holding. This is the first
grievance voiced by the petitioners in the writ petition
contending that the petitioners were qualified for the posts
of Professor and that each of them was holding the post from
1963, 1970 and 1970 respectively. The petitioners made
various representations basing their claim inter alia on
fair play, equality of opportunity in the matter of public
employment and equal pay for equal work as well as the
provision contained in Fundamental Rule 23. The petitioners
also contend that they fulfil the minimum qualification
prescribed for the post after upward revision of the pay-
scale, and they have the requisite experience and that they
are performing the same or identical duties
208
as are being performed by newly recruited Professors in
sister disciplines and that denial to them of the revised
pay scales for the post of Professor apart from being
discriminatory and violative of Art. 14 is thoroughly
arbitrary and unjustified. It appears that pursuant to the
decision dated April 6, 1972, the ICAR issued an
advertisement on May 21, 1974 inviting applications for the
post of Professor in Animal Pathology, Animal Genetics and
Veterinary Parasitology in the revised scale of Rs. 1100-
1600. These were the posts already held by petitioners. The
advertisement set out the essential and desirable
qualifications for each post. Petitioners contend that the
duties pertaining to the post of Professor in the upgraded
scale are the same as performed by the petitioners and that
this action of inviting fresh applications for post already
held by the petitioners disclosed a cover attempt to remove
the petitioners from the posts held by them for years.
Petitioners further contend that only three posts held by
the petitioners have been advertised inviting the
applications for fresh recruitment while there were others
who were holding posts of Professors in the pre-revised
scale and to whom benefit of automatic upward revision was
granted and this disclosed not only the bias of the ICAR but
also subjected the petitioners to gross discrimination.
Serious allegations of bias and malafide have been made
against respondent No. 6, the Director of IVRI, and Director
General of ICAR, which need not be set out here. It may,
however, be stated that though the various functionaries
working in IVRI and ICAR are highly qualified persons,
professional rivalry had led to such poisoning of the
atmosphere and character assassination had become so rampant
and the environment had become so suffocating that the
Government of India had to appoint a Committee presided over
by late Shri P.D. Gajendragadkar, retired Chief Justice of
the Supreme Court with wide terms of reference which amongst
others included the recruitment and personnel policies of
ICAR as well as Institutes and Centres working under it and
to suggest measures for their improvement. It is alleged
that absolutely incorrect, improper and prejudiced entries
are made in confidential reports with a view to harming the
career of the persons who have fallen from the grace of the
Director and that therefore, the Court should lift the veil
of the so-called society and peep into the realities of
life. The petitioners accordingly prayed for an appropriate
writ, order or direction to quash the advertisement dated
May 21, 1975 inviting applications for the posts of
Professors in three subjects already held by the petitioners
and to confirm the petitioners in the aforementioned posts
and to give them the benefit of the revised scale from the
date from which it was given to Professors in sister
disciplines and to quash
209
the adverse entries in the confidential reports of the three
petitioners. On these averments petitioners filed the
present writ petition under Art. 32 of the Constitution.
Re : S.L.P. No. 2339/75 with R.P. No. 4/77 :
One Dr. Y.P. Gupta filed Writ Petition No. 276 of 1972
in the High Court of Delhi questioning the correctness of
the order removing him as member of the faculty of the post-
graduate school of Indian Agricultural Research Institute
(IARI for short). Petitioner Dr. Gupta also questioned the
validity of appointment of Dr. S.L. Mehta respondent No. 6
in the High Court to the post of Senior Bio-chemist in IARI
and claimed that he was entitled to be appointed to that
post. This petition was resisted by the respondents
primarily on the ground that neither ICAR not IVRI is either
a State or other authority within the meaning of the
expression in Art. 12 of the Constitution. When the matter
came up before the Division Bench of the Delhi High Court, a
direction was given that in view of the importance of the
questions that arise for determination in the writ petition
before the court and in view of the various decision which
have to be reconciled, the petition should be heard by a
larger Bench. Pursuant to this direction, the matter came up
before a Bench of five Judges. The larger Bench formulated
four questions for its considerations :
“1. Do the petitioners have legal right to challenge
the appointment of respondent 6 ?
2. Has the Director-General of the ICAR acted in
contravention of any legal obligation in making
the appointment of respondent 6 ?
3. Has the said appointment vitiated by the mala
fides of Dr. Swaminathan and/or of Dr. Naik ?
4. Was it bad because of the want of qualifications
of Dr. Mehta or non-compliance with the prescribed
procedure in making it ?”
The court answered the first question against the
petitioner holding that ICAR is a society registered under
the Societies Registration Act and it is neither a State nor
other authority within contemplation of Art. 12 of the
Constitution. The court further held that
210
the relation between the petitioner and ICAR is governed by
a contract and the rules and the bye-laws of the Society and
ICAR was free to fill in the post of Senior Biochemist in
any manner it liked. The court observed that the petitioner
being a mere employee, he has no legal right against the
employer and in the absence of any statutory element
governing his employment, the relation is governed purely by
a contract and a breach of contract, if any, would not
permit a declaration in favour of the petitioner. Briefly,
the court held that the remedy by way of writ is not
available against ICAR, On the second question the court
held that the Director-General owed no obligation or legal
duty in making the appointment of the sixth respondent which
can be enforced by a writ petition. Questions Nos. 3 and 4
were dealt together and it was held that the pleadings were
inadequate to permit a finding of mala fide and in the
absence of proof there is nothing to show that the
appointment of the sixth respondent was vitiated either by
mala fides or by non-compliance with procedure. Consistent
with these findings, the writ petition of Dr. Gupta was
dismissed. Simultaneously, the writ petition filed by one
Dr. T.S. Raman being Writ Petition No. 669/72 was dismissed
by the common judgment.
Dr. Y.P. Gupta filed S.L.P. No. 2339 of 1975 in this
Court. On October 6, 1975, this Court directed a notice to
be issued to the respondents to show cause why special leave
to appeal should not by granted. When the matter came up
again before this Court on July 21, 1976, Mr. Lokur, learned
counsel appearing for the ICAR stated to the Court that the
respondent-council would consider the question of taking
back the petitioner as a member of the postgraduate faculty
of IARI. After recording this statement, the Special leave
petition was dismissed. Petitioner Dr. Gupta filed Review
Petition No. 79 of 1976 requesting the Court to review its
order dismissing the special leave petition. This review
petition was rejected on October 27, 1976. As second review
petition was not barred at the relevant time, Dr. Gupta
filed Review Petition No. 4/77 which is directed to be heard
in the present group of appeal, writ petition and special
leave petition.
Re : R.P. No. 80 of 1976.: Dr. T.S. Raman whose Writ
Petition No. 669 of 1972 was heard along with Writ Petition
of Dr. Gupta and which was also dismissed by the common
judgment, filed Special Leave Petition No. 702 of 1976 in
this Court. This petition was dismissed by the Court on
August 30, 1976. Dr. T.S. Raman filed Review Petition No. 80
of 1976 which is being heard in this group.
211
Re: C.A. No. 1043/81: Appellant Dr. Om Prakash Khauduri
filed Writ Petition No. 553 of 1980 in the High Court of
Delhi alleging that he was selected for the post of Senior
Computer with Indian Agricultural Statistics Research
Institutes, and affiliate of ICAR. ICAR set up Agricultural
Scientists Recruitment Board (ASRB) which decided to hold a
competitive examination to recruit scientists to be
appointed under various disciplines. ICAR framed rules
setting out the terms and conditions for admission to the
competitive examination. Appellant applied for admission to
the competitive examination in ‘Agricultural Statistics’
discipline. The written test was held from 1st to 4th
February, 1978. The Board incharge of the selection and
appointment on the comparative merits as evidence by the
performance in the written examination selected 20
candidates including the appellant as having obtained the
prescribed qualifying marks for the purpose of viva voce
examination which was held on April 10th and 11th, 1978.
After the viva voce test, 13 candidates were declared as
successful and were offered appointment as scientists in the
discipline ‘Agricultural statistics’. The appellant failed
to qualify for the same. According to the appellant, 21
vacancies remained unfilled. Appellant contends that he had
secured 364 marks out of 600 in the written examination and
38 marks out of 100 in the viva voce test. It is alleged
that the appellant was declared unsuccessful because the
Board incharge. of the examination has by itself determined
without any authority that anyone who obtained less than 40
marks at the viva voce examination would not be eligible for
selection for the posts. It is therefore, contended that the
action of the Board in fixing minimum qualifying marks in
the viva voce examination and basing the final selection on
this arbitrarily fixed criterion lacks both the authority of
law and rules and that the Board has acted arbitrarily and
without the authority of law. Appellant accordingly made
representations but failed to evoke a sympathetic reply, and
therefore, the appellant filed a writ petition in the High
Court of Delhi which was dismissed in limine on the ground
that the writ petition against the respondent was not
maintainable. Hence this appeal by special leave.
Ordinarily one would sincerely deplore the delay in
disposal of a problem brought before the Court; but
occasionally, one comes across a case in which the sheer
passage of time and the fast removing scenario of changing
pattern of law resolves the dispute to some extent.
Mr. Lokur appearing for ICAR raised a preliminary
objection
212
that ICAR is not an agency or instrumentality of the State
and therefore it is not comprehended in the expression
‘other authority’ within the meaning of the expression in
Art. 12 of the Constitution and therefore the High Court 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 nor other authority within the
contemplation of Art. 12 nor an instrumentality of the
State, writ jurisdiction of the High Court cannot be invoked
against it. Sabhajit Tewary v. Union of India & Ors was the
sheet anchor of Mr. Lokur’s extensive submissions because in
that case a Constitution Bench presided over by the then
Chief Justice ruled that the Council of Scientific and
Industrial Research, a Society registered under the
Societies Registration Act, was neither a State nor other
authority within the contemplation of Art. 12 and therefore,
the writ petition was held not to be maintainable against
it. And even though this matter had become part-heard in
1980 and the hearing was resumed in 1983 before a different
Bench, the vigour of the sustained attack was not the least
dimmed even though the law expanding the width and ambit of
the expression ’State’ and ‘other authority’ in Art. 12 had
taken strides culminating in Ajay Hasia etc. v. Khalid Mujib
Sehravardi & ors. etc.(2) And Mr. Lokur continued his
submission with unabated fury even though the learned
Solicitor General Shri K. Parasharan appearing for the Union
of India fairly conceded that in view of the circumstances
disclosed in the case and the trend of the decisions, it is
not possible to contend that ICAR and its affiliates IVRI
and IARI would not be other authority being
instrumentalities of the State and against which writ
jurisdiction could be invoked.
A very brief resume of the history of ICAR commencing
from its initial set up and its development into its present
position would show that as a matter of form, it is a
society registered under the Societies Registration Act but
substantially when set up it was an adjunct of the
Government of India and has not undergone any note worthy
change. On the advent of the provincial autonomy under the
Government of India Act, 1919, ‘agriculture’ and ‘animal
husbandry’ came under the heading ‘transferred subject’ with
the result that they came within the exclusive jurisdiction
of the Provincial Government. Development of agriculture and
research in agriculture
213
became the responsibility of the Provincial Government. Even
then a Royal Commission on agriculture was constituted in
1926 to enquire into the agricultural set up and the rural
economy of the country and to make recommendations to
consider what firm steps are necessary to be taken by the
Central Government in this behalf The Commission in its
report recommended the setting-up of Imperial Council of
Agricultural Research. Acting upon this recommendation,
Government of India sent a telegram to the Secretary of
State On April 24, 1929 informing the latter that the
process of setting up of the Council is under way and that
when set up Council would be a Society. On May 9, 1929,
Secretary of State approved the proposal of the Government
of India subject to variations mentioned therein. By its
Resolution dated May 23, 1929, the Central Government
directed that Imperial Council of Agricultural Research
should be registered as a Society under the Registration of
Societies Act, XXI of 1860. The Resolution further provided
that with respect to the grant to be made to the Council to
meet the cost of staff, establishment etc., the Government
of India decided that for reasons of administrative
convenience, it should be in the same position as a
department of the Government of India Secretariat. The
Imperial Council of Agricultural Research was set up in June
1929. A direction was also given that the research
institutes were to be maintained by the Council. In their
counter-affidavit filed in the High Court of Delhi it was
conceded in paragraph 27 that the Imperial Council of
Agricultural Research should in future be an attached office
and not the department of the Government to be entirely
manned by Government-staff and the secretariat staff of the
Council was to be paid from the grant to be given by the
Government for its administration and they would be
Government servants and the Secretariat would be department
of the Government of India. In July, 1929, ICAR was
registered as a Society with its office in the Secretariat
as an attached office of the Secretariat. By the Resolution
dated August 4, 1930, Government of India directed that for
reasons of administrative convenience “the Governor-General
in Council has now, decided that the Imperial Council of
Agricultural Research Department, as the Secretariat of the
Council will henceforth be designated, should be a regular
department of the Government of India Secretariat under the
Hon’ble Member incharge of the Department of Education,
Health and Lands”. A note was submitted on December 29, 1937
to the then Viceroy concerning the status and position of
the ICAR as a Department of the Government in which it was
recommended that ICAR should not only be maintained as a
distinct entity independent of the Government of India and
with a view to achieving
214
this position, the office of the ICAR should not in future
be a Department of the Government of India but should be an
attached office. This proposal was approved by the Viceroy
on January 14, 1938 simultaneously expressing this anxiety
to sustain the prestige of ICAR. The next step is one taken
by the Resolution dated January 5, 1939 by which the
Government of India modified the status of the ICAR from the
Department of the Secretariat to one of an attached office
of the Government of India. A letter was addressed to the
High Commissioner for India in London on January 14, 1939
intimating to him that the Secretariat of the ICAR will
cease to be a department of the Government of India and will
be an attached office under the Department of Education,
Health and Lands with effect from January 15, 1939. Till
then recruitment to various posts in ICAR was made through
Federal Public Service Commission and this was to be
continued even after the change in the status of ICAR as an
attached office as evidenced by the letter dated August 24,
1938 by the Joint Secretary to Government or India to the
Federal Public Service Commission. A bill was introduced in
the Central Legislature styled as the “Agricultural Produce
Cess Bill, 1949″. The statement of object and reasons
accompanying the bill recited that the Central Government
have provided grants to the tune of Rs.84 lakhs for the
expenditure of the Council and took notice of the fact that
the Council has practically no source of income other than
the contribution from the Central Revenue which may be
unstable depending upon the state of finances of the Central
Government. It was further observed that in order to place
Council on a more secured financial position it has been
decided to levy a cess at the rate of 1/2% on the value of
certain agricultural commodities and the proceeds for the
proposed cess are estimated to amount in a normal year to
about Rs. 14 lakhs. The bill was moved. In the debate upon
the bill, a statement was made on behalf of the Government
of India that the Central Legislature will retain its full
right of interpellation and of moving resolutions and will
still vote on the grant of the permanent staff, and some of
the activities of the Council. In other words, an assurance
was given that the Central Legislative Assembly will have
positive control over the affairs of the Council to the some
extent and degree when it was a Department or an attached
office of the Government of India. On the advent of
independence. The Imperial Council of Agricultural Research.
With effect from April 1, 1966, administrative control over
IARI and IVRI and other institutes was transferred to ICAR
simultaneously placing the Government staff of the
institutes at the disposal of ICAR as on foreign service.
This is evidenced by a communication dated
215
April 19, 1966 addressed by the Ministry of Agricultural,
Food, Community, Development and Cooperation to the
Directors of central Research Institutes. An option was
given to the members of the staff of the Institutes,
administrative control of which was transferred to ICAR and
the date for exercising the option was extended by the
communication dated November 9, 1966. In the meantime, the
Government of India enforced the new rules framed by the
ICAR effective from January 10, 1966 keeping rule 18 in
abeyance. With the change in the status of the ICAR,
Department of Agricultural Research and Education (‘DARE’
for short) was set up in the Ministry of Agriculture and it
came into existence on December 15, 1973. This Department
was set up with a view to providing necessary Government
linkage with ICAR. The major function of the Department was
to look after all aspects of agricultural research and
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 such functions as plant and animal introduction
and exploration, and soil and land use survey and planning.
By this very Resolution, the Director General of ICAR was
concurrently designated as Secretary to Government of India
in the DARE. The position of ICAR was clarified to the
effect that in the reorganised set-up, the ICAR will have
the autonomy essential for the effective functioning of a
scientific organisation and deal. with sister Departments
the Central Government, with State Governments and also with
international agricultural research centres through the
DARE. Rule 18 of the ICAR rules which was kept in abeyance
on January 10, 1966 was brought into operation in its
entirety effective from April 1, 1974 as per communication
dated March 30, 1974 by the Ministry of Agriculture to the
Secretary, ICAR The consequence of Rule 18 becoming
operative was that the Secretariat of ICAR ceased to be an
attached office of the Ministry of Food and Agriculture and
the Society shall function as ‘wholly financed and
controlled by the Society’. This last sentence hardly makes
any sense. Till Rule 18 was kept in abeyance, recruitment to
ICAR was done through the Union Public Service Commission as
evidenced by the letter dated August 24, 1938 of the
Government of India to the Secretary, Federal Public Service
Commission, Simla. Rule 18 as stated earlier became
operative from April 1, 1974. Rule 18 provides that ‘the
Society shall establish and maintain its own office,
Research Institutes and Laboratories. The appointment to the
various posts under the Society’s establishment was to be
made in accordance with the Recruitment Rules framed for the
purpose
216
by the governing body with the approval of the Government of
India”.
Apart from the criteria devised by the judicial dict
the very birth and its continued existence over half a
century and it present position would leave no one in doubt
that ICAR is almost an inseparable adjunct of the Government
of India having an outward form of being a Society, it could
be styled as a Society set up by the State and therefore,
would be an instrumentality of the state.
ICAR started as a Department of the Government of India
having an office in the Secretariat even though it was a
Society registered under the Societies Registration Act. It
was wholly financed by the Government of India. Its budget
was voted upon as part of the expenses incurred in the
Ministry of Agriculture. Even when its status underwent a
change, it was declared as an attached office of the
Government of India. The control of the Government of India
permeates through all its activities and it is the body to
which the Government of India transferred Research
Institutes set up by it. In order to make it financially
viable, a cess was levied meaning thereby that the taxation
power of the State was invoked, and the proceeds of the tax
were to be handed over to ICAR for its use. At no stage, the
control of the Government of India ever flinched and since
its inception it was setup to carry out the recommendations
of the Royal Commission on Agriculture. In our opinion, this
by itself is sufficient to make it an instrumentality of the
State.
It was however urged that The Council of Scientific and
Industrial Research (CSIR’ for short) a society registered
under the Societies Registration Act and having an identical
set up as well as constitution, was held not to be an
instrumentality of the State or ‘other authority’ under Art.
12. In Sabhajit Tewary’s case, this Court held that the CSIR
did not have a statutory character like the Oil and Natural
Gas Commission, or the Life Insurance Corporation or
Industrial Finance Corporation, and it was a society
incorporated in accordance with the provisions of the
Societies Registration Act. The fact that the Prime Minister
is the president or that the Government appoints nominees to
the Governing Body or that the Government may terminate the
membership will not according to this Court establish
anything more than the fact that the Government takes
special care that the promotion, guidance and co-operation
of scientific and industrial research, the institution and
financing of specific researches, establishment of
development and assistance to special institions
217
for scientific study of problems affecting particular
industry in a trade, the utilisation of the result of the
researches conducted under the auspices of the Council
towards the development of industries in the country are
carried out in a responsible manner, and these aspects are
not sufficient to reach the conclusion that the Society was
an agency or instrumentality of the Government. This Court
also referred to some decisions which have held that the
companies incorporated under the Companies Act and the
employees of these companies do not enjoy the protection
available to Government servants as contemplated in Art.
311. This Court accordingly concluded that CSIR is not an
instrumentality of the Government comprehended in the
expression ‘other authority’ within the meaning of Art. 12
of the Constitution, and the writ jurisdiction cannot be
invoked against it. Much water has flown down the Jamuna
since the dicta in Sabhajit Tewary’s case and conceding that
it is not specifically overruled in later decision, its
ratio is considerably watered down so as to be a decision
confined to its own facts. The case is wholly
distinguishable on the facts apart from the later indicia
formulated by the Court for ascertaining whether a body is
‘other authority’ within the meaning of Art. 12. A mere
comparison of the history of ICAR as extensively set out
herein before and the setting-up of CSIR would clearly show
that ICAR came into existence as a department of the
Government, continued to be an attached office of the
Government even though it was registered as a society and
wholly financed by the Government and the taxing power of
the State was invoked to make it financially viable and to
which independent research institutes set up by the
Government were transferred. None of these features was
present in the case of CSIR and therefore, the decision in
Sabhajit Tewary’s case would render no assistance and would
be clearly distinguishable.
The ratio, if any, of the decision in Sabhajit Tewary’s
case was examined by a Constitution Bench of this Court in
Ajay Hasia’s case and it was held that that decision is not
an authority for the proposition that a society registered
under the Societies Registration Act, 1860 can never be
regarded as an authority within the meaning of Art. 12. The
Court further held that having regard to the various
features enumerated in the judgment in Sabhajit Tewary’s
case, the conclusion was reached that the CSIR was not an
agency of the Government, but the Court did not rest its
conclusion on the sole ground that CSIR was a Society
registered under the Societies Registration Act, 1860, and
on the contrary proceeded to consider various other features
of the Council for arriving at the conclusion that it was
not an agency of the Government and therefore, it was not an
authority for the
218
proposition that a society registered under the Societies
Registration Act for that reason alone would not be
comprehended in the expression ‘other authority’. In Ajay
Hasia’s case, this Court after taking note of the decisions
in Ramana Dayaram Shetty v. The International Airport of
India & Ors.(1) and U.P. Warehousing Corporation v. Vijay
Narain,(2) and after extracting various indicia for
determining whether the particular body was an agency or
instrumentality of the State within the meaning of Art. 12,
proceeded to examine whether the society which had
established Regional Engineering College, Srinagar and which
was registered under the Jammu & Kashmir Registration of
Societies Act, 1898 was an instrumentality or agency of the
State and would be comprehended in the expression ‘other
authority’ in Art. 12. In this connection the Court observed
as under:
“It is in the light of this discussion that we
must now proceed to examine whether the Society in the
present case is an “authority” falling within the
deintion of “state” in Article 12. Is it an
instrumentality or agency of the Government ? The
answer must obviously be in the affirmative if we have
regard to the Memorandum of Association and the Rules
of the Society. The composition of the Society is
dominated by the representatives appointed by the
Central Government and the Governments of Jammu &
Kashmir Punjab, Rajasthan and Uttar Pradesh with the
approval of the Central Government. The monies required
for running the college are provided entirely by the
Central Government and the Government of Jammu &
Kashmir and even if any other monies are to be received
by the Society, it can be done only with the approval
of the State and the Central Governments. The Rules to
be made by the Society are also required to have the
prior approval of the State and the Central Governments
and the accounts of the Society have also to be
submitted to both the Governments for their scrutiny
and satisfaction. The Society is also to comply with
all such directions as may be issued by the State
Government with the approval of the Central Government
in respect of any matters dealt with in the report of
the Reviewing Committee. The control of the State and
the Central Governments is indeed so deep and pervasive
that no immovable property of the Society can be
disposed
219
of in any manner without the approval of both the
Governments. The State and the Central Governments have
even the power to appoint any other person or persons
to be members of the Society and any member of the
Society other than a member representing the State or
the Central Government can be removed from the
membership of the Society by the State Government with
the approval of the Central Government. The Board of
Governors, which is in charge of general
superintendence, direction and control of the affairs
of Society and of its income and property is also
largely controlled by nominees of the State and the
Central Governments. It will thus be seen that that
State Government and by reason of the provision for
approval, the Central Government also, have full
control of the working of the Society and it would not
be incorrect to say that the Society is merely a
projection of the State and the Central Governments and
to use the words of Ray, C.J. in Sukhdev Singh’s case
(supra), the voice is that of the State and the Central
Governments and the hands are also of the State and the
Central Governments. We must, therefore, hold that the
Society is an instrumentality or agency of the State
and the Central Governments and it is an ‘authority’
within the meaning of Art. 12.”
Applying the criteria, there is little doubt that ICAR
is an instrumentality or the agency of the State. It came
into existence as an integral department of the Government
of India and later on became an attached office of the
Central Government. The composition of the ICAR as evidenced
by Rule 3 could not have been more governmental in character
than any department of the Government. The Governing Body of
the Society would consist of a President of the Society, who
is none other than the Cabinet Minister of the Government of
India for the time being 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 interest in agriculture to be appointed by the
President that is the Minister, three members of Parliament
and Additional Joint Secretary to the Government of India
in the Department of Agriculture to be nominated by that
Department, one person, appointed
220
by the Government of India to represent the Central
Ministry/Department concerned with the subject of Scientific
Research and the Financial Adviser of the Society. There is
none outside the Government in the Governing Body. Rule 91
deals with the finances and funds of the Society and the
sources of income are the cess levied by the Government
under the Agricultural Produce Cess Act and the recurring
and non-recurring grants from the Government of India. The
Rules of the Society were initially framed by the Government
of India and Rule 98 makes it abundantly clear that they can
neither be altered nor amended except with the sanction of
the Government of India. Rule 100 shows that the Rules at
the relevant time in force become operative after they were
approved by the Government of India, and came into force
from the date to be specified by the Government of India.
Rule 93 provides for audit of the accounts of the Society by
such person or person as may be nominated by the Central
Government. Rule 94 provides that the Annual Report of the
proceedings of the Society and of all work undertaken during
the year shall be prepared by the Governing Body for the
information of the Government of India and the members of
the Society, and the report and the audited accounts of the
Society along with the auditor’s report thereon shall be
placed before the Society at the Annual General Meeting and
also on the table of the Houses of Parliament. Rule 18
provides that the appointment to the various posts under the
Society shall be made in accordance with the Recruitment
Rules framed for the purpose by the Governing Body with the
prior approval of the Government of India but prior thereto
it was by the Union Public Service Commission. The
administrative and the financial control of the Government
is all pervasive. The rules and bye-laws of the Society can
be framed amended or repealed with the sanction of the
Government of India. The case before us is much stronger
than the one considered by this Court in the case of Ajay
Hasia and therefore, the conclusion is inescapable that the
Society is an instrumentality or agency of the Central
Government and therefore, it is ‘other authority’ within the
meaning of the expression in Art. 12. As a necessary
corollary the writ jurisdiction can be invoked against it
and therefore the decision of Delhi High Court must be
reversed on this point. The preliminary objection is
accordingly overruled.
Having rejected the preliminary objection, we must now
proceed to examnine the contention raised in each petition
and appeal on merits.
Before we proceed to examine the contentions on merits,
221
unhappy though it may appear to be, and howsoever one would
like to avoid reference to it, it is inevitable that one
must take note of the deplorable state of affairs in the
administration of the affairs of ICAR and the uncongenial
atmosphere in which the highly qualified agricultural
scientists in this country have to work. ICAR was set up for
undertaking Scientific Research in Agriculture, Animal
Husbandry and allied subjects on which the entire economy of
this country revolved till the advent of industrial
revolution. It was set up with a view to imparting speed and
momentum to research in agriculture and allied subjects so
that the country may move from the middle ages to the modern
methods in agricultural technology. Unfortunately, since its
inception, the domestic atmosphere has not proved congenial
to the flowering of the genius of the country’s best talent
in agricultural research. This came to light when on May 5,
1972, newspapers all over the country flashed the tragic
news that a young agricultural scientists, Dr. V.H. Shah,
who was working as Senior Agronomist and Associate Project
Coordinator in the IVRI had committed suicide by hanging
himself in his residence the previous night. There was a
commotion in the Parliament and during the debate in the
House, Members of Parliament regretfully referred to
previous suicides committed by agricultural scientists, one
such being of Dr. M.T. Joseph, Teaching Assistant, Division
of Entomology, IARI who had committed suicide on January
5,1960. These were not stray incidents but the outcome of
persecution, torture and harassment emanating from the
polluted environment in ICAR and its affiliates. The then
Minister for Food and Agriculture stated in the Parliament
that the Government of India was not happy with the
procedure of selection of personnel in the ICAR and
proceeded to inform the House that they have not been too
happy with the present system of recruitment which
necessitates a scientist applying for posts and being
interviewed by selection committees throughout his working
career because the system inevitably provides frequent
occasions for disappointment leading to frustration. Two
decades thereafter we are constrained to note that the
things have not improved at all. The ICAR and the Institutes
seem to be so backward looking in their approach to the
members of the staff that as late as in 1983 considerable
time of this Court was frankly wasted in disposing of the
preliminary objection on behalf of the ICAR that it is not
amenable to this Court’s writ jurisdiction which would imply
that they have skeletons to hide and shun their exposure to
the Court’s examination of the internal affairs. To continue
the narrative, a committee was appointed under the
Chairmanship of Shri P.B. Gajendragadkar, retired Chief
Justice of India and Vice-Chancellor, University of
222
Bombay and at the relevant time Chairman, Law Commission
with wide terms of reference inter alia to enquire into the
recruitment policies of ICAR and to review the recruitment
and personnel policies of ICAR. Institutes and Centres
working under it and to suggest measures for their
improvement. This Committee submitted its Report and we take
note of only one of its findings which reads as under:
“All these complaints have been echoed by several
scientists who met the Committee. In the opinion of the
Committee these complaint have some substance. The
Panel of Advisers also hold the same opinion. The
Committee is of the view that most of these complaints
are due to improper working conditions in the
Divisions. A scientist belongs to a Division where he
carries out his work. The atmosphere in the Division
and the Institute should be conducive to research
activity.”(3)
(emphasis supplied)
At another stage, the Committee has observed that: ‘in
the present circumstances where a crisis of character and
confidence seems to have overtaken the entire administration
of the ICAR, we think it is absolute necessary that
recruitment of personnel in all the Institutes will the ICAR
should revert to the UPSC ‘. The Committee made it clear, it
made this recommendation, because it was satisfied that
there is obvious dissatisfaction with the recruitments made
from 1966 onwards and the Report when browsed through would
leave an ineffaceable impression on the redder that the
Committee was dissatisfied with internal atmosphere in ICAR
and that there was an amount of dissatisfaction about the
recruitment policy and that it was such a perceived reality
that it would be idle to ignore the same. Even the Director-
General who is concurrently also the Secretary to the DARE
in charge of ICAR conceded before the Committee that it
would be better if for some time, the recruitment in
entrusted to some outside agency.(2) In Chapter XI of the
Report, the Committee noted that the complaints made against
the Head of the Division about not giving adequate
facilities for work and the lack of academic atmosphere and
an absence of domestic approach permitting free discussion
on research projects and results obtained were genuine and
they required to be remedied. There is further
223
the 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 hazars of
a fresh selection and the complaint of Dr. Y.P. Gupta is
essentially the same as noticed and commented upon by the
Committee.
Re: W.P. No. 58/75 : 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 and Veterinary
Parasitology from 1963, 1970 and 1970 respectively, when the
pay-scale for the post of Professor on the recommendation of
the University Grants Commission underwent an upward
revision to Rs. 1100-1600, the ICAR instead of straightway
granting the scale to the petitioners, the holders of the
posts of Professor, proceeded to issue an advertisement on
May 21, 1974 inviting fresh applications for the post of
Professor in the three subjects in which the petitioners
were already holding the post of Professor and
simultaneously appointed some others in different subjects
and disciplines as Professors and gave them the revised
scale while the petitioners, were left to languish 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 adverse affectation 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 preserved
scales. Petitioners contend that the situation is recreated
which was adversely commenced upon by the Minister in the
Parliament that the recruitment policy adopted by ICAR
necessitates a scientist to apply for posts and being
interviewed by selection committee with attendant hazard and
consequent frustration. Petitioners therefore pray firstly
for cancelling the advertisement issued for the purpose of
inviting applications for the posts already held by them and
secondly for training 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 experience. Petitioners say that in 1970-71 six
posts of Professor were created in the revised scale of Rs.
1100-1600 at IVRI in the discipline of Poultry Science,
Poultry Pathology, Veterinary Public Health (Calcutta Centre
of IVRI), Biochemistry, Epidemiology and Veterinary Public
Health (IVRI Centre). The revised scale was sanctioned for
these newly created posts pursuant to the reccom-
224
mendation of the University Grants Commission. Let it be
made distinctly clear that the revised scales were meant for
the post of Professor in IVRI not for the post in any
particular discipline. Petitioners were holding posts of
Professor in IVRI, and therefore the petitioners 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 Bacteriology, Animal
Nutrition and Animal Genetics have been sanctioned subject
to the condition that the existing posts of Professor
obviously in the same disciplines in the scale of Rs. 700-
1250 stand abolished. Shorn of embellishment, it would mean
that the posts in the aforementioned three subjects shall
henceforth carry the revised scale of Rs. 1100-1600. The
respondents assert that the revised scale was not be
automatically granted to the existing holders of the posts
but they would be considered with other applicants for
appointment in the higher scales, if they are otherwise
suitable. It was also said 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 relied 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 then 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-revised
scale were already filled in and whether the holders of the
posts got the revised scale without any fuss of fresh
selection on the part of the respondents. The counter-
affidavit on behalf of respondents Nos. 1,2,3,4,5 and 11 is
conspicuously silent on this point. However, it is contended
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 was only a post-graduate
degree in the specific disciple whereas is the postgraduate
in the revised scale, a Doctorate degree in the subject
along with the specialisation in the relevant discipline was
prescribed and which fact can be gathered from the model
qualifications prescribed for similar posts in all the
research institutes of ICAR. It was further asserted that
earlier the minimum experience required was about
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5 years whereas it was revised to 7 years. Nothing would be
more misleading than this eye was performance which really
hides the true intendment namely, 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 score a march in the name of selection
which generally leaves a grey area. Petitioners Nos. 2 and 3
do hold a Doctorate in their respective discipline with
experience extending more than 7 years in the discipline.
Petitioner 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-graduate
qualification in Veterinary and 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. The subterfuge was to expose the petitioners to a
fresh selection test with all its consequential
uncertainties and that was the exact thing found by Dr.
Gajaendragadkar Committee. That is why it can be said that
like the true Bourbons ‘ICAR has learnt nothing and
forgotten nothing.’ The hard fact is that the petitioners
were holding the posts of Professor when the revised scale
became effective. In the letter dated January 20, 1971
sanctioning revised scale for the post of Professor, there
is not even a whisper that the existing incumbent 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 note of inadequate scales sanctioned till the
date of revision. The only 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 contended that the newly created
post in the cadre of Professor is not the same as the then
existing post and that there was marginal revision in the
qualifications for not the posts of Professor in the revised
scale and that petitioners were not discriminated because
they were given an opportunity to contest for the posts in
the revised scale. The justification is too flimsy to merit
any serious consideration more so in view of the fact that
it is difficult to envisage a situation in such institutes,
undertaking advance research in Agriculture and Animal
Husbandry where persons holding Doctorate qualification and
enjoying the status of the post of Professor would be
governed by two different scales even though the duties,
responsibilities and functions in various sister disciplines
are identical. In such a situation Art. 39(d), trust assist
us in reaching a fair and just conclusion. Elaborating the
underlying intendment of Art. 39(d), Chinnappa Reddy, J. in
Randhir Singh v. Union of
226
India & Ors.(1) 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 classification though those
drawing the different scales of pay do identical work under
the same employer. The case in hand is a glaring example of
discriminatory treatment accorded to old experienced and
highly qualified hands with an evil 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 on the doctrine
of classification because the classification of existing
incumbents as be distinct and separate from newly recruited
hand with flimsy change in essential qualification would be
wholly irrational and arbitrary. The case of the petitioners
for being put in the revised scale of Rs. 1100-1600 from the
date on which newly created posts of Professors in sister
disciplines in IVRI and other institutes were created and
filled in revised scale is unanswerable and must be concede.
When the matter was discussed threadbare Mr. Abdul
Khader, learned counsel for the Union of India stated that
all the petitioners 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 selection to fill-in those posts has been
cancelled. He further stated that the first petitioner had
to be unofficially put in the same scale on account of the
failure of the first petitioner to exercise his option to be
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 scale from the date fresh recruitment was
made in sister disciplines in IVRI in the revised scale, and
if the seniority was disturbed 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,
it is immaterial whether the advertisement which was issued
is cancelled or not. If the respondents still want to pursue
the advertisement, they may do so without in any
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 reasons herein indicated.
This would dispose of W.P. No. 587 of 1975.
Re: R.P, No.4 of 1977 in S.L. P. No. 2339/75 :
Dr. Y.P. Gupta filed Writ Petition No. 276 of 1972 in
the High Court of Delhi. In this writ petition, he primarily
raised two contentions:(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 IARI in 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 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.”
Amongst others, petitioners Dr. Y.P. 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 qualifications laid down
for the post and therefore, the Committee was unable to
recommend any name at that stage. The Committee further
recommended 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 further recommended that
from amongst the candidates interviewed
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and considered in absentia those whose names were set out in
the report be called for fresh interview which may be held
after the post is advertised afresh with expanded essential
qualification. This list includes the names of petitioners
Dr. Y.P. Gupta and Dr. T.S. Raman as also respondent No. 6
Dr. S.L. Mehta. A fresh Selection Committee was set up which
included respondent No. 5 Dr. M.S. Naik against whom
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 inter alia on the ground that Dr.
S.L. Mehta did not satisfy the minimum essential
qualification.
Another grievance in the petition is that petitioner
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 removed from the membership of the
Faculty. In the communication dated June 15, 1971 by the
Assistant Registrar to Dr. M.S. Naik, Head of the
Biochemistry Department, Ann. P-1 to the petition in the
High Court, it is stated that letter of Y.P. Gupta dated May
30, 1970 was considered by the Academic Council which
unanimously resolved that Dr. Gupta was not interested in
continuing as a member of the Faculty and hence the Council”
regret to utilise his service as a member of the Faculty to
the post-graduate school any more.” Thus according to the
petitioner, he was removed from the membership of 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 on the
ground that no writ petition lies against IARI, 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 very
fact that respondent No. 6 Dr. S.L. Mehta was appointed on
the recommendation of the Selection Committee it must have
been done by necessary implication after relaxing the
essential qualification and therefore, the appointment of
respondent No. 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 member of
the Faculty and that he was not removed from the member-
229
ship and it was not necessary to hear him because it was not
a case of removal but of cessation of membership and
therefore no relief can be granted to Dr. Gupta.
Before we proceed to examine 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 writ petition filed by Dr. Gupta
was dismissed by the High Court on merits 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 statement 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 rejected 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 in the High Court on a 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 cannot be invoked against ICAR
and its affiliates and it was held that the writ
jurisdiction cannot be invoked. Once the High Court held
that the writ jurisdiction cannot be invoked, it could not
proceed to examine the contentions 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 on 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 contentions 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 respondent No. 6 Dr. S.L.
Mehta
230
who was selected by the Selection Committee for the post of
Senior Bio-chemist after the bizarre exercise undertaken to
find a suitable person to fill in the post on the earlier
occasion, did not fulfil one of the essential qualifications
for the post. It was urged that in order to help respondent
No. 6 to get selected essential qualification was doctored
to suit his requirements and respondent No. 5 was nominated
on the second Selection Committee. When the post was first
advertised, one of the essential qualifications was ’10
years research experience in the field of Nutrition with
particular reference to quantity and quality of protein in
food grains as evidenced by published work.’ It is not in
dispute that Dr. Gupta, the present petition did satisfy
this 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 specifically recorded its finding that none of the
candidates interviewed or considered in absentia including
respondent No. 6, selected at a later stage, fulfils all the
essential qualifications laid down for the post. The
Committee 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 pos of Senior
Biochemist. Initially experience required was in the field
of Nutrition with particular reference to quantity and
quality of portion in food grains as evidenced by published
work while the ambition 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 Dr. S.L.
Mehta had them 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
reconstituted 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
231
qualification and oblige respondent No. 6 to fit into
altered qualification.
Two errors are pointed out in connection with the
proceedings of the second Selection Committee in which Dr.
M.S. Naik participated, 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 recruitment 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
respondent No. 6 as Senior Bio-chemist. The post of Senior
Bio-chemist has since been abolished. Therefore, setting
aside the selection of respondent No. 6 for the post of
Senior Bio-chemist is only of academic interest. However one
aspect which we cannot overlook is that by this process of
selection seriously questioned in this petition, Dr. S.L.
Mehta has scored a march over petitioner Dr. Gupta and his
co-petitioner 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 selected 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. Mehta 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
232
view that the period spent in preparing thesis for M.Sc.-
mark not Ph.D. counts towards required experience. It is
well-settled that experience to be of value and utility must
be acquired after the educational qualification is obtained
and not while acquiring the postgraduate qualification. In
the case of’ Ph.D. Degree awarded on research 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.Sc. in 1964 and Ph.D. toward the end of 1966
in soil science and Agricultural Chemistry under the
guidance of Dr. N.B. Das and joined service at IARI in July,
1969. These facts are uncontroverted 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. 6 appeared not to carry on research in
the line of Nutrition or protein Chemistry and therefore he
did not fulfil the qualification at all and in our opinion,
he even could not have been called for interview by the
Selection Committee. Not only that in para 10 of the writ
petition in the High Court, it was specifically asserted
that respondent No. 6 Dr. Mehta did not satisfy the original
or amplified essential qualification pertaining to
experience because the post was under the project on the
protein quality of millets, sorghum, wheat and other cereals
concerned with studies on the nutritional quality of food
grains whereas Dr. Mehta has never done any work nor
published any literature in the line of nutrition nor was he
ever basically trained in this line. In the counter-
affidavit filed on behalf of respondent Nos. 2 and 4 that is
Director General and Secretary to the Government of India,
ICAR and Director General of ICAR, this averment was neither
questioned nor controverted nor denied. Further the High
Court upheld the selection and appointment of respondent No.
6 Dr. Mehta holding that as the Selection Committee had
power to relax the essential qualification, the appointment
of Dr. Mehta was made after relaxing the essential
qualification. We find it difficult to appreciate that the
High Court should uphold an appointment of a person, to suit
whose requirement, the essential qualification was amplified
by providing an irrelevant additional amplification 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 connection,
it is advantageous to refer to the counter-affidavit of
respondent No. 4, the Director General of ICAR, wherein he
stated that first essential qualification pertaining to
educational attainment was relaxable. He is silent as
233
to the second essential qualification pertaining to
experience. The relevant portion may be extracted:
“Doctorate in Bio-chemistry or organic 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 to a counter-affidavit on behalf of
respondents Nos. 3 and 5 to 7 which included respondent No.
6 the party concerned. In the counter-affidavit, there is an
sphinx like silence with regard to the averments made in
para 10 that respondent No. 6 Dr. Mehta did not satisfy the
essential qualification pertaining to 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 ICAR and its affiliates and respondent No. 4 amplified
the essential qualifications. And we could not trace the
source of power if any to relax essential qualification as
to experience. Therefore, 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 left to
speculate the reasons which weighed with the Selection
Committee to reject 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 more submission may be disposed of.
It 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 least competent to do so and
therefore it would be unwise to substitute experts’ decision
by Courts’ decision. In this connection, reliance was placed
on Dr. M.C. Gupta & Ors., v. Dr. Arun Kumar Gupta & Ors.(1)
in which this Court held as under:
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“When selection 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 rule 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(1) 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 law is entrusted to this Court and it
cannot abdicate its functions. Once it is most
satisfactorily established that the Selection Committee did
not have the power to relax essential qualification
pertaining to experience, the entire process of selection of
the 6th respondent was in contravention of the established
norms prescribed by advertisement and power of the Selection
Committee and procedure of fair and just selection and
equality in the matter of public employment and to rectify
resultant injustice and establish constitutional value this
Court must interfere. Selection of respondent No. 6 is
contrary to rules and orders and violation of prescribed
norms of qualification. He was inelibleg 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
Bio-chemist has been abolished. Undoubtedly, respondent No.
6 by undeserved benefit of improper selection 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
235
No. 6 has reached the scale of Rs. 1800-2250 while Dr. Gupta
is in the scale of Rs. 1500-2000. Respondent No. 6 Dr. Mehta
is enjoying this utterly undeserved benefit consequent upon
his unsustainable 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 to Dr. Gupta and
he is entitled to it.
The second grievance of Dr. Gupta is that he was
illegally removed 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 superiors by not allocating 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 letter
petitioner Dr. Gupta informed the Academic Council that even
though he has been repeatedly assured that his grievance
would be thoroughly examined and full justice would be done
to him for the discrimination 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, I am sorry to decide that I should resign from
the membership of the Faculty in protest against such a
treatment and against the discrimination 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:
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“Your letter was considered by the Council at its
meeting held on 3rd May, 1971 when the Council came to
the unanimous conclusion that you were not interested
in continuing as Faculty Member and hence the Council
regrets to utilize your services as a Faculty Member of
the 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 against 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 to him. When everything
fell on deaf ears, out of exasperation he wrote letter dated
May 30, 1970 in which he stated that the only honourable
course left open to him was to resign rather than suffer.
The Council seized upon this opportunity to get rid of Dr.
Gupta. In this 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:
(i) The Head of the Division does not give facilities
for work. He favours those who work for him.
(ii) There is no academic atmosphere as there is no
free discussion 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 etc. take
inordinate delay.
(v) Scientists are not allowed 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 Laboratory has
several equipments which scientists of other
Divisions normally cannot use.”
After listing these complaints, the Committee gave its
considered opinion as under:
237
11.2 We feel that most of these complaints are 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 conditions 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 refer 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 IARI, we cite the
following. These come from the submissions made by
three scientists of the Bio-chemistry Division of IARI,
Dr. T.S. Raman challenges the findings in the Ph.D.
thesis of Dr. L.S. Mehta. a Biochemist in the Nuclear.
Research Laboratory. Dr. Raman categorically asserts
that certain data contained in Dr. Mehta’s thesis
“could not have been obtained by methods he has claimed
to have been used.” Dr. Y.P. Gupta who apparently has
himself worked on the lysine content of different
varieties of wheat, states that in the half-yearly
report for period ending October, 1968, he had reported
the lysine content of Sonora-64 to be 3.26%- but that
the Head of the Division deliberately challenged it to
2.26% so 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 November 1967 issue
of the journal “Food Industries”. Dr. K.G. Sikka states
that four varieties of Arhar (cajanus) have been
recently released which he finds contain certain toxic
substance causing blindness among rate. Within the
short time available to us, it has not been possible
for us to 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
allegations. Whether they are substantiated a careful
examination, the fact remains that there are many
junior scientists in IARI who, rightly or wrongly, feel
that they are not free to publish a scientific finding
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
238
The existence of this feeling is most regrettable
because it creates the conditions for breeding of
unscientific behaviour and practices if they do not
already exist. Mere refutation of the allegations will
not therefore do.”
Dr. Gupta’s complaint was then noted and that is the
complaint 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 letter 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 statement made by Mr. Lokur,
learned counsel appearing for ICAR and its affiliates before
this Court on July 21, 1976 at the hearing of S.L.P. No.
2339/75 preferred by petitioner Dr. Gupta which reads as
under:
“Mr. Lokur states that the respondent council
would consider the question of taking back the
petitioner as a member of the Faculty.”
After recording this statement the special leave
petition 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 direct the
council to carry out its statement made before this Court
within three months from the date from today.
Re: R.P. No. 80/76 in S.L.P. 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 on all the grounds which were urged by Dr. Y.P.
Gupta in his writ petition. There is also an additional
point in his favour in that even though the first Selection
Committee constituted to select a Senior Biochemist had
directed that the second Selection Committee should
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 Committee which recommended
respondent No. 6 Dr. Mehta for the post of Senior
Biochemist. Dr. T.S. Raman questioned the corrections and
validity of the selection of Dr. S.L. Mehta, respondent No.
6 in Special Leave Petition 702/76 which 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 Court on August 30. 1976.
Thereafter, he filed Review Petition No. 80/76
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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 our 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. Raman in not informing the
concerned authority about the change in his address and.
therefore, if Dr. Raman did not receive the intimation 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 Second 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
Committee. This is begging the issue because the High Court
wholly overlooked the proceedings of the first Selection
Committee in which it was decided that without any fresh
application. from Dr. Raman, he would be considered to be a
candidate before the second Selection 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 so and he cannot make
a grievance about his own lapse. If Dr. Raman was at the
relevant time attached to the Institute and was working with
the Institute, we see no justification for the ministerial,
side of the Institute not informing Dr Raman 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 clear in error in observing that either Dr. Raman was
not hopeful of getting the job or he had some other reasons
for not applying for the same and therefore his grievance
cannot be entertained. This is clearly contrary to record.
He had applied earlier and was entitled to be called for
interview as noted in the proceedings. It was obligatory
upon the second Selection Committee
240
to inform Dr. Raman to appear for the interview and adequate
steps should have been taken to give the intimation because
he was attached to the Institute and was in active service
of the Institute and intimation to him would not require any
herculean effort on the part of the Committee. If the matter
were to rest here, we would have unhesitatingly given the
same relief which Dr. Gupta is held entitled to, but certain
additional facts were put on record which necessitate a
different approach.
It may be recalled 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. 1800-2250. It 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
scale S-2 Rs. 1100-1600 from the same date. Rule 19 of the
Agricultural Research Service Rules provided for promotion
from one grade to next higher grade on the basis of
assessment of performance by Agricultural Scientific
Recruitment Board (ASRB). The screening for the purpose 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 appointed 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 Committee for promotion to S-3 grade i.e.
Rs. 1500-2000, but instead of promotion to the higher grade,
the Committee recommended that two advance increments be
granted to Dr. Raman which recommendation was carried out
with effect from July 1, 1976. Against the assessment by the
Assessment Committee, Dr. Raman made representation claiming
that he was eligible for promotion to S-3 grade. This
representation was rejected by the Director General
concurring with the assessment made by the Assessment
Committee which did not find Dr. Raman fit for promotion to
S-3 grade. In 1978 Dr. Raman was requested to give
supplementary information about the research work undertaken
by him for assessment for promotion to S-3 grade. In the
meeting of the Assessment Committee held on May 28, 1980,
the information supplied by Dr. Raman was held to be
insufficient and this can be culled out from the observation
of the Committee that 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
241
`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 succinctly
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 until 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 1st 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 counsel 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
paragraph, 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 obtaining post-graduate degree in the discipline
`Operational Research’ in 1973-74 joined the post of Senior
Computer in Indian
242
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 advertisement
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
candidates, ASRB made available the rules framed by the ICAR
on August 19, 1977 (`1977 Rules’ for short) setting out the
terms and conditions for admission to the competitive
examination and the criteria for 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 contends
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 liable 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 petitioner made
various representations and he was satisfied that the ASRB
had accepted the same method of preparing the merit list as
the UPSC which followed the method of arranging the merit
list according to the aggregate marks obtained at the
written test and viva voce test and if the merit list was
prepared according to that method, he was eligible for being
selected for one of the vacancies in ARS. Petitioner
continued his search for justice and ultimately
243
he filed a Writ Petition No. 553/80 in the High Court of
Delhi for the above mentioned reliefs. A Divisions Bench of
the High Court held that the law as it then stood was clear
that a Society registered under the Societies Registration
Act was not other authority within meaning of the expression
under Art. 12 and that as ICAR is 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 narrow 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 list on the basis of aggregate marks obtained
by him as required by Rule 14 of the 1977 Rules ?
ASRB has been set up as a separate and independent
agency for recruiting personnel for IASRI, an affiliate of
ICAR. A competitive examination was held in 1978 to recruit
scientists to be appointed under various disciplines of ARS
including the discipline `Agriculture Scientists’. There
were 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 are eligible to be
called for viva voce test. 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
(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 shall be
recommended for appointment upto the number of
unreserved vacancies decided to be filled on the
result of the examination.”
Mr. Ramachandran, learned counsel for the petitioner
contended that Rule 13 does not envisage 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. It
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 to each candidate and such
candidates as are found by the Board to be qualified by the
examination shall be recommended for appointment upto the
number 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 the
ASRB to prescribe minimum qualifying marks to be obtained by
the 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 final merit list
would be drawn up according to the aggregate 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
245
viva voce test, the result has been unduly affected. We say
so for want of adequate material on the record. In this
background we are 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 obtaining
minimum marks at the viva voce test is adhered to, a
candidate who may figure high-up in the merit list was
likely to be rejected on the ground that he has not obtained
minimum qualifying marks at viva voce test. 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 the 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
Statistical Service. Rule 12 and 13 are relevant for this
purpose. Briefly, it may be stated that rule 12 authorises
the Commission 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
minimum 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 awarded 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 vacancies decided to be filled on
the result of the examination. There is a proviso to this
rule which is immaterial. 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
246
had not obtained minimum 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 Deputy 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 marks 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 late 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 qualifying 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 on the 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 for appointment prospectively, and not
retrospectively. This is the only relief which we are
inclined to grant to the petitioner.
247
That is the end of the journey. It 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. S.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 counsel Mr. Lokur of taking back Dr.
Y.P. Gupta as a member of the Faculty of post-graduate
school 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 grade within a period of
3 months: Dr. T.S. Raman is not entitled to any further
relief in his special leave petition.
In C.A. 1043/81, the ICAR and ASRB are directed to
prepare the merit list in respect of those candidates who
were called for viva voce test, but were not included in the
merit list on the aggregate of marks obtained by them as
directed herein and if there is a vacancy and the
appellant/petitioner comes within the zone of selection he
shall be appointed to one such vacancy. The appointment
would be prospective 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 to be done.
We order accordingly. The respondent shall pay the
costs of the petitioners in each petition.
N.V.K. Appeals & Petitions allowed.
248