AI Structured Summary
Not yet generated for this judgment
Judgment
G.C. Bharuka, J.-The dispute in this appeal relates to the appointment of Director of Sanjay Gandhi Institute (in short, "the Institute"). The appellant, who was found by the Selection Committee to be the best merited candidate for appointment to the above post having found to his dismay that the fourth respondent had been appointed to the post at the instance of the Chief Minister of the State, knocked the doors of this Court for ventilation of his grievance. But he having failed to get the desired relief from the learned Single Judge is now before us in this intra Court appeal.
The correctness of the foundational facts as found by the learned Single Judge has not been disputed by any of the parties to the present proceedings. The original records pertaining to the appointment in question has also been produced before us by Mr. D''Sa, learned Additional Government Advocate.
The Institute is a society registered under the Karnataka Societies Registration Act, 1960. Admittedly, it is an instrumentality of the State Government and is a ''State'' within the meaning of Article 12 of the Constitution of India.
Under Notification No. SGAH and RI/EST(1)132/98-99, dated 3-9-1999 (Annexure-B) applications were invited by the Institute from eligible candidates for appointment to the post of Director. In pursuance to the said notification, in all 26 persons including the appellant and respondent 4 filed their applications. On scrutiny, 22 of them were found to be ineligible. Accordingly, only the remaining four were called for interview by the Selection Committee, which comprised of five members including the Chief Minister of the State as its Chairman.
The interviews were held by the Selection Committee in its meeting held on 11-1-1999. Though in the proceedings there is a mention that it was held under the Chairmanship of the Chief Minister but it is clear from the records that he did not participate in the interviewing process since the interview marks were assigned and merit assessment was done only by the remaining four members of the Committee.
According to the procedure adopted by the Selection Committee each of the four members assigned independent marks under five heads each carrying 10 marks. The five heads were as follows.- (a) Personality Trades (b) Power of Expression (c) Smartness and Intuitiveness (d) General Knowledge (e) Other trades including the knowledge of the subject having a bearing on the post for which the recruitment is being made.
The extract of the marks recorded by four members are as follows.-
Name of the Candidate Marks assigned by
Director Social Outside expert Health Secretary Director of Medical Education Total
Dr. M. Chandramouleesha 16 18 20 20 74
Dr. H. Dayananda Ballal(4th respondent) 27 32 32 31 122
Dr. A.M. Kulkarni 19 20 18 18 75
Dr. B. Sadasivamurthy(appellant) 31 23 34 35 123
The four participating members of the Committee keeping in view the aggregate of the marks assigned by them made an unanimous recommendation in the following terms:
"Based on the performance, merit, experience and suitability of the candidates appearing for interview, the Committee is of the opinion that Dr. B. Sadashivamurthy is suitable for the post of Director.
Dr. H. Dayananda Ballal may be kept in the waiting list".
After almost three months of the above recommendation by the Committee, on 15-3-1999, the Chief Minister appended a personal note to the above recommendation to the following effect:
"Based on expert opinion, Sri H. Dayananda Ballal is recommended for selection as Director of SGAHRI".
On left side of this note the Director, Medical Education, also subscribed his signature.
Thereafter, on that very day i.e., 15-3-1999, the Governing Council met in the Chambers of the Chief Minister, who was the ex-officio Chairman of the Council as well and passed the following resolution:
"The Governing Council is the Appointing Authority for the post of Director as laid down under Rule 3(2) of the C and R Rules. After scrutinizing the recommendations of the Selection Committee the Governing Council resolved to select Dr. H. Dayananda Ballal for the post of Director, Sanjay Gandhi Accident Hospital and Research Institute based on the opinion of the outside expert of the Selection Committee".
Pursuant to the above resolution of the Governing Council, first the State Government issued a notification dated 20-3-1999 appointing Dr. Ballal (R-4) as Director of the Institute. But subsequently the notification was withdrawn by the Government by an order dated 27-3-1999 with simultaneous issuance of the impugned notification dated 27-3-1999 by the Institute appointing Dr. Ballal as Director on contract basis with immediate effect upto 15-10-2001 or until further orders whichever is latter.
The above notification Annexure-G to the writ petition being the subject-matter of challenge is being reproduced hereunder:
"No. EST(1)/426/98-99 Date: 27-3-1999
NOTIFICATION
Dr. H. Dayananda Ballal, Bangalore is appointed as Director, Sanjay Gandhi Accident Hospital and Research Institute, Bangalore on contract basis in the pre-revised scale of pay Rs. 4700-150-5300-175-6000-200-6400 with immediate effect and upto-date 15-10-2001 (date of completing 62 years) or until further orders whichever is earlier. This order is issued as approved by the Hon''ble Chief Minister, Government of Karnataka and Chairman of the Governing Council in the meeting of the Governing Council of the Sanjay Gandhi Accident Hospital and Research Institute held on 15-3-1999.
This order will come into effect from the date of taking charge by the Director.
Sd/-Chief Administrative Officer".
The learned Single Judge, in order to resolve the controversy raised before him, had formulated the following points for consideration:
"(I) Whether the fourth respondent had the required experience (5 years) in an administrative capacity?
(II) Whether the Governing Council has taken a decision different from that of the Selection Committee?
(III) Whether the Governing Council can take a decision different from that of the Selection Committee?
(IV) Whether the decision taken by the Governing Council is valid?"
The learned Single Judge for the reasons detailed in the impugned order has answered each of the four points in favour of Dr. Ballal (R-4) thus holding his appointment to be in accordance with the rules of the Institute. The appellant being not satisfied with the reasonings given by the learned Single Judge has presented this appeal for review on the points raised by him.
We have heard Sri S.S. Javali, Senior Advocate, appearing for the appellant, Sri R.I. D''Sa, learned Additional Government Advocate, appearing for the Institute and State Government, as also Sri Jayakumar S. Patil, learned Counsel for the fourth respondent-Dr. Ballal.
Before adverting to the points raised before us it is appropriate to refer to the relevant rules and extract the material provisions there from. The appointment to the post in question is governed by the "Sanjay Gandhi Institute of Accident Rehabilitation and Physical Medicine (Cadre, Recruitment, Conditions of Service and Miscellaneous Provisions) Rules, 1989" (in short, "the Rules"). These rules contain two Annexures. Annexure-I contains Cadre and Recruitment Rules.
Sub-rule (2) of Rule 3 of the Rules defines the ''Appointing Authority'' and also sets out as to how the Appointing Authority shall make appointments. This clause reads as under:
"Rule 3(2).-"Appointing Authority" in relation to the post of Director is Governing Council and to any post in Group ''A'' and Group ''B'' posts "Board of Appointment" and the "Director" in respect of posts in Groups ''C'' and ''D''.- (a) The Board of appointment shall consist of.- (i) The Chairman of the Governing Council;
(ii) The Vice-Chairman of the Governing Council;
(iii) The Director.
(b) The Appointing Authority concerned shall make appointments from among the candidates selected by the concerned Selection Committee as provided in these rules separately".
Sub-rule (11) of Rule 3 defines the Selection Committee to mean the Selection Committees as specified under Rule 6 of Annexure-I. As per Rule 6 of Annexure-I, the following is the Constitution of the Selection Committee for the post of Director:
"Chairman, Governing Council : Chairman
Vice-Chairman : Member
Director of Medical Education : Member
Director of Social Welfare : Member
One outside expert : Member
Director : Member"
Then Rule 8 of Annexure-I to the Rules provides for the functions of the Selection Committees. It reads thus:
"8. Functions of the Selection Committee:
(a) The Selection Committee shall meet at Bangalore.
(b) It shall examine the credentials of all applicants posts by deciding the procedure for conducting the selection.
(c) It shall prepare a panel of names in the order of merit and as per reservation policy".
Rule 2 of Annexure-I to the Rules virtually reiterated what has been said in Rule 3(2) of the Rules by providing that the Governing Council shall make appointment to the post of Director.
From the above rules, it is abundantly clear that so far as the post of Director is concerned, undoubtedly the Governing Council is the Appointing Authority for the post. It is also clear from Rule 3(2) of the Rules that the Governing Council has to make the appointment to the post of Director from among the candidates selected by the Selection Committee referred to above. It also cannot be disputed that it is the function of the Selection Committee to prepare a panel of names in order of merit.
Keeping in view the above stipulations made in the recruitment rules of the Institute, the foremost question to be considered is whether the Governing Council can ignore the order of merit determined by the Selection Committee and can decide to appoint a person of a lower merit. The further question of importance would be that even if such a power is conceded to the Governing Council still then whether it can do so without there being acceptable good reasons for the same.
The contentions raised on behalf of the respondent, which have weighed heavily with the learned Single Judge in not interfering with the decision of the Governing Council in appointing the 4th respondent Dr. Ballal as Director of the Institute, are that.- (i) The Rules of the Institute are non-statutory in nature.
(ii) The function of the Selection Committee was only to give opinion to the Governing Council regarding merits of the candidates.
(iii) Three members of the Selection Committee were also members of the Governing Council.
(iv) Rule 6 of the C and R Rules (Annexure-I to the Rules) does not require the Selection Committee to make any recommendation to the Governing Council to the appointment of Director.
(v) No specific procedure was fixed for appointment and the Governing Council was at liberty to adopt its own procedure and devise parameters for making appointment to the post in question.
(vi) The facts does not disclose any mala fide or arbitrariness on the part of the Governing Council.
It is necessary for us to examine each of the above aspect in order to appropriately weigh the respective contentions raised on behalf of the parties and come to a conclusion whether the impugned order of appointment is sustainable in law.
REG: WHETHER THE NORMS LAID'' DOWN IN THE RULES BINDS THE GOVERNING COUNCIL
As noticed above, the Institute being an instrumentality of the State Government is a ''State'' under Article 12 of the Constitution of India. Therefore, all its acts must conform to the requirement of reasonableness which has been recognised as antithetic to arbitrariness. If it can reasonably be concluded that the Governing Council was bound by the norms and standards laid down in the Rules, may be non-statutory in nature, and if it is found that it has acted in violation thereof, then ex facie its action has to be termed as arbitrary.
In the case of S.G. Jaisinghani v Union of India, AIR 1967 SC 1427, it has been held that:
"In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by Rule of law, discretion, when conferred upon executive authorities, must, be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law".
(emphasis supplied)
In the case of Ramana Dayaram Shetty v International Airport Authority of India, AIR 1979 SC 1628, it has been held that:
"It is a well-settled rule of administrative law that an executive authority must be rigorously, held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in Viterelli v Seaton, 359 US 535: 3 Law Ed 1012, where the learned Judge said:
"An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword". The aforesaid principle laid down by Mr. Justice Frankfurter in Viterelli''s case has been accepted as applicable in India by this Court in Dr. Amarjit Singh Ahluwalia v State of Punjab, AIR 1975 SC 984: (1975)3 SCR 82 and in subsequent decision given in Sukhdev Singh and Others v Bhagatram Sardar Singh Raghuvanshi and Another, AIR 1975 SC 1331: (1975)3 SCR 619, Mathew, J., quoted the above referred observation of Mr. Justice Frankfurter with approval"."
In the case of B.S. Minhas v Indian Statistical Institute, AIR 1984 SC 363, it has been held that though the bye-law of the Institute was found to be non-statutory in nature, but still the Supreme Court after noticing the above referred law laid down in Ramana''s case, concluded that the Institute was bound to follow the bye-laws since it was framed for conduct of its affairs to avoid arbitrariness and it cannot escape liability for not following the procedure prescribed under the said bye-laws.
From the above enunciation of law by the Apex Court, we are bound to hold that it was obligatory on the part of the Governing Council to follow the norms, standards and procedures laid down in the Rules of the Institute pertaining to appointment to the post of Director and it is not permissible on its part to avoid challenge made by the appellant on the ground of non-compliance of the stipulation contained therein irrespective of the fact whether the rules as statutory or non-statutory.
REG: FUNCTIONS OF SELECTION COMMITTEE, GOVERNING COUNCIL AND THE FACTUAL HAPPINESS
Rule 8 of the C and R Rules, clearly spells out the functions of the Selection Committee. Under the Rules, it is the function of the Selection Committee to devise appropriate procedure for examining the credentials of all applicants to a post in question and for conducting selection. Under the rules, the function of preparing a panel of names in order of merit has been conferred exclusively on the Selection Committee. The Rules nowhere empowers the Governing Council to either examine the credentials or decide the procedure for conducting or determining comparative merit of candidates. In the present case, admittedly, the Selection Committee, as a body, had devised procedure of its own for conducting selection and preparation of panel of names in order of merits.
For the above purpose, as already noticed above, four out of five members of the Selection Committee, who participated in the process of the interviewing candidates, had decided to award marks to each candidate under five heads having bearing on administrative capacity to head an organisation like the Institute and then by aggregating those marks worked out the merits of the respective candidates. Based on such an assessment, the Selection Committee found appellant to be the most suited for the post and the choice of the 4th respondent-Dr. Ballal was kept at the next place as a waiting candidate.
Despite the above facts, the Chief Minister, after a lapse of almost three months, ventured to opine on the file that Dr. Ballal should be selected as Director of the Institute. This recommendation was made on the purported expert opinion though on the file there was no such opinion available. As of fact, the Rules does not envisage giving of any opinion by any expert, but Mr. D''Sa, learned Government Advocate, tried to explain the view of the Chief Minister by advancing an explanation that since the mark a''ssigned by the outside expert was highest, therefore, that was taken to be his opinion on comparative merits of the candidates.
In our opinion, there is an inbuilt and inherent fallacy in the above argument. The rules do not postulate that the outside expert was the only expert to weigh and assess the respective merit of the candidates. The other members of the Selection Committee, who all appears to be holding responsible administrative posts in the Government and the Institute, cannot in any way be said less expertise in assessing the merits of candidates. The Rules do not permit giving of higher weightage to the opinion of one or the other member of the Selection Committee. The Selection Committee was required to prepare only one panel of names in the order of merit. Moreover, when the Chief Minister for one or the other reason did not or could not participate in the proceedings for conducting selection as provided under Rule 8 of the C and R Rules, it was totally impermissible on his part to express or endorse any opinion as a member of the Selection Committee. Therefore, his belated endorsement dated 15-3-1999 on the proceedings of the Selection Committee was wholly unwarranted and speaks of mala fide on his part, which appears to be intended to influence the Governing Council, which as of fact did happen in the present case.
At this stage, it becomes essential to once again refer to Rule 3(2)(b) of the Rules which provides that the Appointing Authority shall make appointments from amongst candidates selected by the concerned Selection Committee. Therefore, as per this Rule, the Appointing Authorities, i.e., Governing Council in relation of the post of Director, Board of Appointment in relation to the post in Groups ''A'' and ''B'' and the Director in relation to the posts in Groups ''C'' and ''D'', has to make appointments from amongst candidates selected by the concerned Selection Committee. The constitution of the Selection Committee have been provided under Rule 6 of the C and R Rules. It is the Selection Committee which has to prepare the panel of names in order of merit.
Keeping in view the Scheme under the Rules, it cannot be disputed that once the merit/select list is prepared by the Selection Committee, the Appointing Authority as and when it so decides, has to make appointments only from the amongst candidates placed in such a list. The question is while making such appointments, can the Appointing Authority at its whims and by adopting the method of pick and choose appoint any candidate from the select list to the post or it has to adhere to the rankings as set out in the said list?
In our considered opinion, keeping in view the requirement of fair-play, reasonableness and the constitutional mandate under Articles 14 and 16, the Appointing Authority can make appointment from amongst the candidates placed in the selection list prepared by the Selection Committee, strictly in accordance with the merit requirements unless for one or the other reason, the candidate placed at the higher rank is found to be disabled or not available for some good or understandable reason. Such reasons may be like disinclination of a candidate to seek appointment, his demise, physical handicap, subsequent disclosure of adverse facts pertaining to his credentials and eligibility or antecedents suggesting undesirability of his appointment to the post.
In the present case, none of above factors are available on record to disentitle the appellant from being appointed to the post of Director. In this view of the matter, we are firmly of the view that the appellant is entitled to be appointed to the post of Director of the Institute in preference to the 4th respondent who has been favoured with appointment as Director in the Institute under the impugned notification dated 27-3-1999.
Accordingly, we set aside the order dated 21-7-1999 passed by the learned Single Judge in W.P. No. 10605 of 1999 and quash the notification dated 27-3-1999 (Annexure-G) issued pursuant to the meeting of the Governing Council of the Institute held on 15-3-1999 appointing the 4th respondent as the Director of the Institute. We also direct the respondent-Governing Council of the Institute to take appropriate decision regarding appointment to the post in question in accordance with law laid down as above within two weeks from today.
In the result, the writ appeal is allowed. Parties to bear their own costs.