IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-9-2011 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR W.P.No.23652 of 2010 & M.P.Nos.1, 2 of 2010 W.P.No.9717 of 2011 & M.P.No.1 of 2011 W.P.No.23652 of 2010 Dr.S.Kathiroli ... Petitioner Vs. 1. Government of India, rep.by the Secretary, Ministry of Earth Sciences, Mahasagar Bhavan, Block No.12, C.G.O.Complex Lodhi Road, New Delhi – 110 003. 2. National Institute of Ocean Technology, rep.by its Chairman of Governing Council, NIOT Campus, Velachery Tambaram Road, Pallikkaranai, Chennai – 600 100. 3. Dr.M.A.Atmanand, Director, National Institute of Ocean Technology, NIOT Campus, Velacherry, Tambaram Road, Chennai – 600 100. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Quo Warranto calling upon the third respondent to show cause under what authority he has been holding the post of Director in the second respondent Institute without fulfilling the essential qualification and experience prescribed under the recruitment Rules notification dated 28.4.2005 and direct the respondents 1 and 2 to declare the proceedings No.F/NIOT/E&P/PF/003/2009, dated 21.10.2009 issued by the respondents appointing the third respondent as the Director of the second respondent institute as without authority and jurisdiction. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.9717 of 2011 T. Lokachari ... Petitioner Vs. 1. Government of India, rep.by the Secretary, Ministry of Earth Sciences, Mahasagar Bhavan, Block No.12, C.G.O.Complex Lodhi Road, New Delhi – 110 003. 2. National Institute of Ocean Technology, rep.by its Chairman of Governing Council, NIOT Campus, Velachery Tambaram Road, Pallikkaranai, Chennai – 600 100. 3. Dr.M.A.Atmanand, Director, National Institute of Ocean Technology, NIOT Campus, Velacherry, Tambaram Road, Chennai – 600 100. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Quo Warranto calling upon the third respondent to show cause under what authority he has been holding the post of Director in the second respondent Institute without fulfilling the essential qualification and experience prescribed For Petitioner in : Mr.R.Subramanian W.P.No.23652/2010 For Petitioner in : Mr.B.Ravi W.P.No.9717/2011 for Mr.T.Sezhian For 1st Respondent : Mr.R.Thiagarajan, Senior Counsel in W.P.No.23652/2010 for Mr.V.Kadhirvelu, CGC For 1st Respondent : Mr.V.Kadhirvelu, CGC in W.P.No.9717/2011 For 2nd Respondent : Mr.V.Vijayshankar For 3rd Respondent : Mr.Balamuralikrishnan, M/s.Karthik, Mukundan & Neelakantan https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER These writ petitions, seeking to issue a writ of quo-warranto, are filed by the petitioners to call upon the third respondent to show cause under what authority he has been holding the post of the Director of the National Institute of Ocean Technology, Chennai – 100 (hereinafter referred to as 'NIOT'). 2. Petitioner in W.P.No.23652 of 2010 served as the Director of NIOT/the second respondent Institute and also participated in the selection process for the post of Director of the NIOT, who was not selected, instead third respondent was selected for the post. Petitioner in W.P.No.9717 of 2011 is a retired Administrative Officer of NIOT. 3. The brief facts necessary for disposal of the writ petition are as follows: (a) NIOT/the second respondent institute is established and registered under the Societies Registration Act, 1975. It is an autonomous body, established for technical development and technological development in Ocean Science and Marine sector and the institute is fully funded by the Government of India. The said institute is managed and administered by the Governing Council under the control of the Ministry of Earth Science (MoES), Government of India. (b) The Ministry of Earth Science issued a notification on 18.1.2009 inviting applications for the post of Director in NIOT prescribing certain qualifications. Pursuant to the said advertisement, applications were received. The third respondent did not apply and his name was nominated/sponsored. Interview was conducted on 1.8.2009 and the third respondent was selected and appointed as the Director of NIOT by order dated 21.10.2009. (c) The third respondent is possessing B.Tech Electrical and Electronics Engineering from the University of Calicut in the year 1983. He obtained M.Tech (Electrical Engineering) from the IIT, Madras in the year 1985. He joined Fluid Control Research Institute (FCRI) as Engineer Trainee in the year 1985 and he has been working in the area of flow of measurement and control at various levels till 1997. He submitted Ph.D thesis after undergoing the research programme during the year 1992-1995 at IIT, Madras after availing leave from the Fluid Control Research Institute, Palakad. He was conferred Ph.D in the year 1997 and joined in the second respondent institute as Senior Project Manager in the same year. The third respondent was promoted as Scientist Grade 'F' and he was not considered for further promotion to Grade 'G' in June-July, 2009 as he had not completed the requisite minimum experience of five years in Grade 'F'. (d) According to the petitioner, as per the information https://hcservices.ecourts.gov.in/hcservices/ obtained by him through RTI, there are no separate recruitment rules framed for the post of Director, NIOT and the notified recruitment rules for the Ministry of Earth Science (MOES) are applicable to autonomous bodies and as per the said recruitment rules, 23 years of experience at post graduate level research and development, survey, administration, planning and supervision or training in the field of Oceanography and Marine Technology is required and Doctorate degree will count as three years experience and the prescribed method of recruitment shall be by way of promotion under flexible complementing scheme or deputation or observation, failing which by direct recruitment. (e) It is the case of the petitioner that essential qualifications and experience of 23 years in teaching has been flouted while selecting the third respondent as the third respondent did not have the requisite experience for over 20 years. Therefore the third respondent's selection without application and without having the prescribed period of experience is improper. It is the further contention that the respondents 1 and 2 have not followed the Recruitment Rules and favoured the third respondent by reducing the requisite experience to 20 years with further reduction of three years for Ph.D. The third respondent was having only 20 years of experience in the field of Oceanography and Marine Technology. (f) According to the petitioners, the Selection Committee has not been constituted in accordance with the recruitment rules and the third respondent having not found qualified for Scientist Grade 'G' due to non completion of five years of term in Grade 'F', cannot at all be appointed as the Director, particularly when there are qualified and experienced candidates available for selection as Director. (g) In W.P.No.9717 of 2011 it is further stated that the experience required can be counted only after possessing the necessary qualification and the recruitment rules having been made applicable to the autonomous bodies, the qualification prescribed for Scientist Grade 'G' has to be fulfilled for the post of Director and therefore the advertisement issued is contrary to the recruitment rules and even in the advertisement no mention is made about the nomination of candidates. (h) It is further contended that the persons who nominated the third respondent were part of the interview committee and therefore the third respondent's selection and appointment is not in order. The Director of NIOT being an office of public servant and the second respondent being a public authority, the appointment of the Director requires the approval of the Appointment Committee of the Cabinet. 4. The first respondent has filed counter affidavit contending as follows: https://hcservices.ecourts.gov.in/hcservices/ (i) The NIOT, Chennai is one of the autonomous institution attached to the Ministry of Earth Science, which is vested with the responsibility to make appointment of the Director of the Institute. Since its inception in 1993, three Directors were appointed. Considering the heavy responsibility of the post, qualification and experience, higher than that of the Scientists of identical scale of pay, the post was filled up as per the established procedures. (ii) The tenure of the previous Director Dr.S.Kathiroli, who is the petitioner in W.P.No.23652 of 2010 expired on 31.8.2009 and the process of recruitment was initiated through advertisement, which was uploaded in the website of the Ministry as well as in the website of DOP&T dated 13.3.2009. Advertisement was also published in the Employment News issue dated 16.5.2009. In the second respondent institute, one Professor named M.Ravindran worked as Director from 9.11.1993 on contract basis till 4.5.2000 and from 5.5.2000 to 31.8.2004 he served as the regular Director. The said Dr.S.Kathiroli served as Director from 1.9.2004 and from 21.10.2009 the third respondent is serving as the Director. (iii) The Government of India, Ministry of Personnel and Public Grievances and Pension Department issued office memorandum dated 30.7.2007 giving direction that the Government shall constitute a Search-cum-Selection Committee for all appointments to the post of Chief Executives of Autonomous Bodies. Accordingly a Search-cum-Selection Committee was constituted with Dr.Shylesh Nayak, Secretary MoES, a distinguished Scientist of International repute as Chairman. (iv) Requests were sent by the Search-cum-Selection Committee to the Heads of Scientific Ministries and Departments and other eminent Scientists in the field to nominate suitable candidates in order to have a wider choice of selection. Out of 11 candidates nominated/applied, seven were shortlisted by the Screening Committee. Six of the seven candidates turned up for discussion. The Committee recommended the third respondent's name for appointment for five years as Director of NIOT. With the approval of the Ministry the proposal was sent to DOP&T on 10.8.2009, which in turn conveyed its approval by communication dated 20.10.2009. The appointment order with further approval of the Chairman, GC of NIOT was issued to the third respondent, who assumed the charge of the Director of NIOT on the afternoon of 21.10.2009. (v) The first respondent also raised preliminary objection regarding the maintainability of the writ petition as there was a delay in filing the writ petition. The writ petitions were filed for oblique purpose. The second writ petition was filed after knowing the objections raised in the counter affidavit filed in the first writ petition, particularly regarding the conduct of the petitioner in W.P.No.23652 of 2010. (vi) The Director post is not covered under the recruitment rules. The period of experience prescribed in the advertisement is https://hcservices.ecourts.gov.in/hcservices/ experience of five years as Head/Leader of an important technical and scientific programme or institution. The third respondent headed the NIOT right from 2000. He had acquired Doctoral degree on 26.7.1997. Thus, he was having more than five years of experience in a discipline/or of work. (vii) The contention of the period of experience shall be counted after the date of acquiring the minimum prescribed qualification is non-existent in the rules and unless it is specifically stated in the notification, the said contention cannot be raised. (viii) Interview was conducted not only for the candidates applied as per the advertisement, but also to the candidates who have been nominated. Merely because the post was advertised, Government's choice to nominate candidate for selection before the Search-cum-Selection Committee as per the practice cannot be found fault with. This practice has been followed from 1993 i.e, for previous two appointments and in the year 2004, the third respondent himself was selected on being nominated and not by way of submitting his application. (ix) The qualification prescribed for Scientist Grade 'G' in MoES is not the prescribed qualification for the post of the Director. The third respondent having fulfilled the qualification and experience prescribed in the advertisement, his selection is just and proper. Seven candidates were invited for discussion including the third respondent, who possess the minimum required eligibility. The advertisement having prescribed experience of over 20 years in teaching, research and technology, the third respondent, who was having 25 years of experience was found eligible for selection. (x) The first respondent is bound to follow the Office Memorandum dated 30.7.2009 to set up the Search-cum- Selection Committee and the candidates nominated were also interviewed along with the candidates applied in terms of the advertisement. Therefore there is no violation of Article 16 or 14 of the Constitution of India. Even though the NIOT is fully funded by the NIOT rules and regulations of the Governing Council, the appointment to the post of Director is made pursuant to the approval of the Appointment Committee of the Cabinet. 5. Respondents 2 and 3 also field separate counter affidavits justifying the selection/appointment of the third respondent as Director of the NIOT. 6. The learned counsels for the petitioners submitted that the third respondent was not qualified as per the recruitment rules as he was not having more than 23 years of experience after passing Ph.D. The applications having been invited for direct recruitment, nominating candidates for selection is illegal and the third https://hcservices.ecourts.gov.in/hcservices/ respondent having been found not eligible to be promoted to Scientist Grade 'G', cannot be made as Director as he has to discharge the duties of Scientist Grade 'G'. The learned counsels also cited judgments in support of their contentions. 7. The learned Senior Counsel appearing for the first respondent on the other hand submitted that the recruitment rules are not applicable to the post of Director and as per the advertisement, 20 years of experience is sufficient. The third respondent having served in the second respondent Institute, was rightly nominated by the Search Committee in terms of the office memorandum dated 30.7.2007 and in fact the petitioner in W.P.No.23652 of 2010 himself was nominated on earlier occasion and was selected as Director and therefore he was fully aware of the selection procedure and having participated in selection in terms of the advertisement and not being selected, he lacks bona fide in filing the writ petition under the guise of filing writ of quo warranto. The learned Senior Counsel also submitted that the second writ petition was filed by the erstwhile Administrative Officer at the instance of the petitioner in other writ petition. 8. The learned counsel for the second and third respondents also supported the contentions raised by the learned senior Counsel for the first respondent and vehemently opposed the writ petition (W.P.No.23652/2010) filed by the former Director, who has taken a chance for selection and he being not selected, as well as the writ petition (W.P.No.9717/2011) filed by the Administrative Officer, who was induced by the other writ petitioner and the writ petitions being filed with mala fide intentions, urged this Court to dismiss the writ petitions with heavy costs. 9. The learned counsel for the respective respondents also cited several decisions in support of their respective contentions. 10. I have considered the rival submissions of the learned counsel for the petitioner as well as respective respondents as well as the pleadings. 11. The points arise for consideration in these writ petitions are, (1) Whether the third respondent is having the requisite qualification for the post of the Director of NIOT ? (2) Whether the procedure adopted for selection of third respondent is https://hcservices.ecourts.gov.in/hcservices/ in accordance with the established procedure or not ? 12. The second respondent is an autonomous institution, fully funded by the Central Government. The post of Director of NIOT was filled up three times on regular basis i.e., in the year 2000, 2004 and 2009. The petitioner in W.P.No.23652 of 2010 was selected as Director on 1.9.2004 and served till the third respondent was appointed and his name was nominated for selection by the Search- cum-Selection Committee in the year 2004. 13. For selection conducted in the year 2009, the second respondent issued an advertisement on 18.1.2009. In the advertisement the following are stated as qualification and experience: "Qualification & Experience Essential:- Doctorate in Science/ Engineering/Technology, with over20 years experience in teaching, research & technology development, with a minimum 5 years term as Head/Leader of an important technical/scientific programme or institution. Desirable:- Experience in formulating and implementing multi-disciplinary and multi- institutional programmes preferably in the ocean and marine sciences/technology involving active interaction/ participation with industries is desirable. Experience in the formulation and management of international collaborative ventures is also desirable." On perusal of the above qualification and experience it is evident that Doctorate in Science/Engineering/technology with over 20 years experience in teaching, research and technology development with minimum five years term as head/leader of an important technical, scientific programme or institution is the essential qualification. The said advertisement nowhere prescribes 20 years of experience after possessing Ph.D/Doctorate. 20 years experience in teaching, etc, and five years term as head/leader of an important technical scientific programme or institution is satisfied by the third respondent. The only objection raised by the petitioners is that the third respondent was not having 20 years of experience after possessing Ph.D., which he acquired only in the year 1997. 14. In the said advertisement the mode of recruitment and selection process are not stated. In other words, nowhere it is stated that the appointment is to be made only on the basis of submission of application. The official memorandums issued by the Government of India on 25.10.1994, 3.7.2006 and 30.7.2007 contemplate constitution of Search-cum-Selection Committee with the https://hcservices.ecourts.gov.in/hcservices/ concurrence of DOP&T for all appointments to the post of Chief Executives and for all appointments carrying the pay scale of Rs.18,400-22,400 and above. It is also stated in the office memorandums that the Search-cum-Selection Committee should mandatorily include at least one outside eminent expert from the relevant field. 15. The third respondent's name was nominated by the Search- cum-Selection Committee for selection to the post of Director. The scale of pay for the post of the Director as notified is Rs.34,400- 67,000 + Rs.10,000 grade pay per month and other allowances. Thus, the nomination of the third respondent by the Search-cum-Selection Committee for selection to the post of the Director of NIOT is in tune with the office memorandum referred above, which is the long standing practice being followed by the Public sector undertaking including the second respondent. The experience possessed by the third respondent are as follows: "Third Respondent's Experience (24 years experience overall) 1. Project Director (Scientist F) from June 2005 till date at National Institution of Ocean Technology, Chennai (NIOT). Heading the Deep-sea Technology and Ocean Mining Group. Involved in development of technology towards mining of polymetallic nodules. Holding additional charge as Head, Marine Sensors & Electronics Division of NIOT. Involved in indigenization and development of sophisticated underwater marine electronic equipment. Scale: PB4 – Rs.37400-67000 + Grade Pay Rs.8900/-. 2. Joint Project Director (Scientist E) Heading Deep-Sea Technology and Ocean Mining group of NIOT from September 2000 till June 2005. Also involved in other technology demonstration projects. 3. Sr.Project Manager (Scientist D) from March 1997 to September 2000 incharge of Electrical and Electronics Division of Deep-Sea Technology and Ocean mining group NIOT from March 1997 till September 2000. 4. Senior Research Engineer (Scientist C) at Fluid Control Research Institute (FCRI), Palghat (Ministry of Heavy Industry, Govt. of India) from September, 1989 to March 1997. 5. Engineer (Scientist B) at Fluid Control Research Institute, Palghat, Ministry of Heavy Industries, Govt. of https://hcservices.ecourts.gov.in/hcservices/ India, from February, 1985 to September, 1989." 16. The contention of the petitioners is that the recruitment rules are to be followed even though there is no separate rule for the post of Director. The contention that Scientist Grade 'G' qualification has to be possessed for the post of Director is also unsustainable. The said advertisement referred above nowhere states that the person applying for the post of Director must possess the qualification prescribed for Scientist Grade 'G'. 17. Petitioner in W.P.No.23652 of 2010 also applied in terms of the advertisement dated 18.1.2009. The petitioner in W.P.No.9717 of 2011 is also aware of the advertisement issued inviting applications. Both petitioners are well aware of the long standing practice followed while appointing the Director of NIOT. After the selection is over and after appointment of the third respondent, it is not open to the petitioners to contend that the advertisement itself is erroneous and it was not in compliance with the recruitment rules and the said contention is to be treated as an after thought. 18. Scientist Grade 'G' is a separate post available for promotion from Scientist Grade 'F'. Comparing the qualifications prescribed for Scientist Grade 'G' for the post of Director and raising a contention that the third respondent is not having the prescribed qualification of Scientist Grade 'G' is an erroneous attempt to side track the issue as the post filled up is only the Director post and not the post of Scientist Grade 'G'. As per the bye-laws of NIOT the post of Scientists Grade 'B', 'C', 'D', and 'F' specifically require the experience to be acquired after the essential qualification i.e., post qualification. As rightly contended by the learned Senior Counsel for the first respondent and the respective learned counsel for respondents 2 and 3, if the argument of the petitioners is to be accepted, the earlier selection of the petitioner in W.P.No.23652 of 2010 for the post of Director itself is illegal as he had completed his Ph.D only in the year 1988, who was selected as Director in the year 2004 and at that time he had completed only 16 years of experience after the Doctorate degree and not 20 years as required. 19. The appointing authority having issued an advertisement inviting applications prescribing 20 years experience without specifically stating that the experience is to be counted only after acquiring the Ph.D qualification, the petitioners are not justified in raising a contention to that effect. The qualification and experience should be satisfied by a candidate selected in terms of the advertisement alone as held by the Supreme Court in the decisions reported in 1993 Supp (2) SCC 419 (M.B.Joshi v. Satish https://hcservices.ecourts.gov.in/hcservices/ Kumar Pandey); (1997) 4 SCC 753 (D.Stephen Joseph v. Union of India); (1999) 1 SCC 453 (Dr.Kumar Bar Das v. Utkal University) and (2002) 2 SCC 712 (G.N.Nayak v. Goa University and Others). 20. The decisions cited by the learned counsel for the petitioners viz., 1991 Supp (1) SCC 367 (Sheshrao Jangluji Bagde v. Bhaiyya); and (2001) 2 SCC 362 (Indian Airlines Ltd. v. S.Gopalakrishnan) were rendered holding that experience can be counted only after acquiring the qualification are in the context of the Rule, which specifically stated that experience must be after completion of the degree concerned. In this case, as stated supra, the terms of the advertisement nowhere states that experience can be counted only after obtaining Ph.D. 21. The third respondent had the experience of 12 years at FCRI and the second respondent deputed the third respondent by direct recruitment to the post of Scientist Grade 'D'. The expert committee consisting of eminent persons have evaluated and assessed the experience of the third respondent and found that he is the most suitable person to be appointed as the Director. No mala fide is established by the petitioners to upset the selection of the third respondent who was selected by the expert body. 22. In the decision reported in 1964 (4) SCR 575 (University of Mysore v. C.D.Govinda Rao) the Supreme Court held that in writ of quo-warranto the Courts should be slow in interfering with the opinion expressed by the experts, particularly when there are no allegations of mala fide. Even in the recruitment rule relied on by the petitioners in the code No.1 it is stated that the exact educational qualification and years of experience according to the requirements of post shall be specified at the time of recruitment. In this case, the Government of India prescribed qualifications and issued an advertisement and the same alone can be the yardstick to find out as to whether the third respondent is qualified for the post of Director. 23. (i) Similar procedure adopted for recruitment through nominations made by the Search-cum-Selection Committee was upheld by the Division Bench of this Court in (2009) 6 MLJ 256 (Dr.M.S.Ananth v. Dr.E.Muralidharan). In the said decision the appointment of the Director of IIT, Madras was upheld on the ground that the procedure followed for several years was followed in the said selection in question. In paragraph 22 it is held thus, "22. .......... The procedure followed for the last 46 years in the matter of