Case: State Of Bihar &amp; Anr Vs. Dr. Asis Kumar Mukherjee &amp; Ors

a direction. We leave the matter at that, for this reason.21. What do the alleged infirmities add up to? Shri Jagdish Swaroop rightly stressed that once the right to appoint belonged to Government the Court could not usurp it merely because it would have chosen a different person as better qualified or given a finer gloss or different construction to the regulation on the score of a set formula that relevant circumstances had been excluded, irrelevant factors bad influenced and such like grounds familiarly invented by parties to invoke the extraordinary jurisdiction under Art. 226. True, no speaking order need be made while appointing a government servant. Speaking in plaintitud inous terms these propositions may deserve serious reflection. The Administration should not be thwarted in the usual course of making appointments because some-bow it displeases judicial relish or the Court does not agree with its estimate of the relative worth of the candidates. Is there violation of a fundamental right, illegality or akin error of law which vitiates the appointment ? The overlooking of alleged superlative abilities claimed by Dr. Mukherjee is not of judicial concern but of public resentment and individual injustice, if wrongly discarded by an appointing authority-in the absence of proof of bad faith or oblique exercise or other error of law. Nor is the corrective judicial review but an appeal to other democratic processes which hold sanctions against misdoings of any Administration and its minions. The Court is not to evaluate comparatively but to adjudicate on legal flaws.22. Viewed in this perspective, was the High Court right in issuing a writ ? We are disposed to say yes. Undoubtedly, appointments to posts need not be accompanied by speaking orders or reasoned grounds. Then the wheels of Government will slow down to a grinding halt, tardy as it is even otherwise. And comity of constitutional instrumentalities forbids unfriendly interference where jurisdiction does not clearly exist. Granting this institutional modus vivendi, has the Court gone away? No, and we will give our grounds.23. While officious interference with every wrong government order is not right, here the 1st respondent has complained of violation of the regulations which bind State and citizen alike. Although the State need not always make a reasoned order of appointment, reasons relevant to the rules must animate the order. Moreover, an obligation to consider every qualified candidate is implicit in the equal opportunity right enshrined in Arts. 14 and 16 of the Constitution. Screening a candidate out of consideration altogether is il legal if the applicant has eligibility under the regulations. And for such a drastic step as refusal to evaluate comparatively, i.e., exclusion from the ring of a competitor manifest grounds must appear on the record. Such being the leg al perspective, let us test the present order of government by those canons.24. The explanatory affidavit of the appellant State and the records fairly produced by it before the Court disclose that Government has adopted a turbid attitude. Did it disregard Dr. Mukherjee out of band for want of Indian teaching experience in an Indian teaching institution ? Shri Jagdish Swaroops submission is that such experience is essential. If so, a violation of the regulation, as interpreted by us, has bee n committed. Failing in this the State falls back on another basis that his foreign experience is not shown to be from an approved teaching hospital, which may be clever but not straightforward. To be cute in Court may not correspond with being correct in administration. The 1st respondents case for the post has not been considered from the legal angle.26. It was the duty of Government to be satisfied, on reasonable materials, that (a) the U.K. hospitals relied on by the 1st respondent are teaching institutions an explained by us after a study of the spirit of the statute; (b) the posts of Registrar in which he worked for 3 years involved teaching functions, the question being looked at fairly, not by semantic hair-splitting and quibbling on words like participating in teaching; (c) the testimonials or written testimony from any British (or Indian, for that matter) Orthopaedics Professor will taken at its face value except where grave suspicion. taints such document, high-placed academic men being assumed to be veracious in the absence, of clear contrary indications; (d) Indian experience, if any, of the 1st respondent, will also be paid attention, provided it satisfied the dual tests contained in the regulation. We are satisfied that the State has made short shrift of Dr. Mukherjee by preliminary screening. The nothings and reports. and vacillating opinions entertained by Government, at various stages do not detain us as they are incidental to any administrative decision and cannot be espied with a suspicious eye by Court. Governmental ways may not In familiar for forensic processes but for that reason cannot be suspected.27. We have already observed that at the first flush the 1st respondent looks like eligible and highly qualified but there may be more than meets the eye. Government may investigate and be satisfied about the real qualifications. In the interests of justice and in view of the ambiguous thinking on this question at administrative levels we regard it as necessary to give the candidates time till the end of January, 1975 to produce evidence of the 1st respondents teaching experience in teaching institutions as interpreted by us. Government will give a fair consideration to the qualifications and relative worth of all the candidates. Length of teaching experience will certainly be a relevant not necessarily dominant-factor. The quality of their experience, their academic attainments and the intellectual ability to stimulate students in the specialty and the investigative curiosity likely to be imparted to the alumni these weighty considerations will promote public weal in a country hungering for talented doctors. Governments sole concern, we feel confident, will be to Get the most capable, in the public interest and in- the hope that this happy wish will not fail we proceed to issue the substantive declarations and directions.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Maybe such consideration will be pertinent when the appointing authority makes comparative evaluation among the candidates. The submission by Shri Jagdish Swaroop based on the dichotomy in the National Health Service Act, 1946(1) between teaching andhospitals has no substance. It is true that under s. 11 (8) of that Act the Minister of Health is authorised to designate as a teaching hospital any hospital or group of hospitals which appears to him to provide for any university facilities for undergraduate or post graduate clinical teaching. We have no material to find out whether hospitals not so designated do provide facilities for teaching nor the criteria and purpose guiding the Minister in exercising his power. Certainly it will be of great help to the 1st respondent to prove his case that he hospital he worked in was a teaching hospital bad it come under the notification of the Minister. The converse does not necessarily follow. We are concerned with an Indian situation and called upon to construe words which are not defined and therefore bear their natural meaning. In this view we do not proceed to examine whether the hospitals in which the 1st respondent claims to have gained teaching experience belong to the category designated under s. 11(8) of the British Act.12. Section 3 of the Indian Act makes it clear that the constitution and composition of a high powered Council of professional men vested with the responsibility to oversee the conduct of examinations and ensure minimum standards of medical education is among the , objects of the statute. The Council has vast powers including the role , of consultant in some vital matters and according recognition of medical qualifications granted by institutions in India (s. 11), in countries with which there is a scheme of reciprocity (s. 12) and of degrees etc. granted by certain other institutions (s. 13). These three categories of medical institutions are covered by Schedules One to Three of the Act. Section 14 relates to recognition by the Government of India of medical qualifications granted by some other countries abroad, after consulting the Council. Inspection. collection of information, granting and withdrawing of recognition and the like are also ancillary powers statutorily conferred on the Council. The regulation by the Council prescribing teaching experience for three Years in a teaching institutions have statutory status. The provisions of he Act form a conspectus and illumine the meaning of the subsidiary legislation. The Councils regulation under s. 33 must be read in this background.13. It may straightway be mentioned that while the expressions medical institution and approved institution are defined (vide s. 2), neither teaching experience nor teaching institution has been defined in the Act, rules or regulations. Simple Anglo Saxon, the framers must have presumed, must be capable of easy understanding and interpretation. Nevertheless, counsel have argued at learned length on the semantics of those words although we are inclined to take not a pedantic nor artificial view of the import of these words but a simple common sense idea of their meaning. Of course, it would be natural to expect any authority (like the Bihar Government in this case) called upon to construe these words used in the setting of a medical statute, if in doubt, to consult the high professional authority enjoying statutory status, viz., the Medical Council of India. It was faintly suggested at the bar that the Council had given a view once but modified it a little somewhat later. We do not find any deviation and are not disposed toourselves into such non germane issues. if it were true that national technical bodies were shaky on crucial occasions, (although we do not find anything like that has happened here). they lend themselves to the suspicion that pressure pays We are sure they will not expose themselves to this risk. In the present case the Government of Bihar is stated to have taken a policy decision not to consult the Medical Council of India. While the appointing authority is the State Government and the responsibility for final choice vests in it is reasonable to consult bodies or authorities of a high technical level when the points in dispute are of a technical nature. To consult another is not to surrender to that other, but merely to seek assistance in the careful exercise of public power. All that we mean to emphasize is that the plain words we have already referred to, about the meaning of which the two sides have betted, should be read having due regard to their normal import, statutory setting, professional object and insistence onapart, it is apparent from the Act that it has recognized medical institutions in Universities without India (vide s. 12 and s. 14) The question is not therefore so simple as to be solved by reference to the Indian map. This country, while rejecting colonial reverence for British institutions has continued to accept and respect advances made in medical specialities abroad, including the United Kingdom and the United States, as is reflected in the Act. Theconstruction is untenable. Equally extreme and unsustainable is the specious plea of Shri Desai that any teaching experience from any foreign teaching institution is good enough. Imagine teaching experience, acquired from some unmentionablycountry which is new to modern medicine being fobbed off on an Indian College Reputed institutions noted for their advanced courses of teaching and training cannot be ignored merely because they bear a foreign badge. What we have to look for is to find guidelines within the framework of the Act for fixing those foreign me dical institutions. Such a nexus once, discernible might light up the otherwise illicit expressions teaching experience and teaching institutions. We have therefore to look, at the outset, for indicators in the Act for deciding which foreign teaching institutions may safely fall within the scope of regulation. The whole object is to see that India gets highly qualified medical teachers and this is served neither by narrow swadeshi nor by neocolonialism. but by setting our sights on the lines of the statute. Indeed, the argument that the teaching institutions in India alone can be taken rote of had been urged andin the first round of litigation by the High Court and the State Government had virtually accepted that decision when it examined the case of Dr. Mukherjee in accordance with the direction in writ petition C.W.J.C. No. 754 of 1972. Teaching institutions abroad not being ruled out, we consider it right to reckon as competent and qualitatively acceptable those institutions which are linked with, or are recognised as teaching institutions by the Universities and organisations in Schedule 11 and Schedule III and recognised by the Central Government under s. 14. Teaching institutions as such may be too wide if extended all over the globe but viewed in the perspective ofthe Indian Medical Council Act, 1956 certainly they cover institutions expressly embraced by the provisions of the statute. If those institutions are good enough for the important purposes of ss. 12, 13 and 14, it is reasonable to infer they are good enough for the teaching experience gained therefrom being reckoned as satisfactory. In this view the problem is whether the institutions referred to in the testimonials of Dr. Mukherjee come within the above recognised categories. We have also to see whether Dr. Mukherjees service in those institutions as a Registrar, even if assumed in his favour, amount to teaching experience. We will deal with these two decisive questions presently.15. We agree that bald expressions teaching experience and teaching institutions with blurred contours have been at the root of the controversy but, as Denning, L.J., inSeaford Court Estates Ltd. v. Asher([1949] (2) All. E.R. 155,n a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament.... and then he must supplement the written words so as/to give force and life to the intention of legislature .... A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out thetake the cue from these observations in the construction we. have adopted above.16. The Indian teaching institutions plea having beenard persistence this time is unfortunate. Even so, the 1st respondent must make out that his institutions fall within the species we have already indicated. Prima facie they do and there is no reason to suspect that the testimonials produced by him are trumped up. Unless proved to the contrary they should be taken by a public authority acting bona fide at their face value.17. Teaching experience of the requisite period is another component of qualifications. A Registrar, the first respondent was, for three years. But did he teach during that term ? He did, if we read his certificates issued by professors like Dr. Robert Roaf and Dr. Geoffrey Osbrone. The appellants however have challenged their reliability. There are 6 certificates now on record and the 1st respondent is stated to have taken part in teaching work as Registrar. You cannot expect to produce those surgeons in Patna in proof and unless serious circumstances militating against veracity existadministrators may, after expert consultations, rely on them. We are sure Government will not depart from fair play in this case or stand on prestige on such an issue to stick to their earlieris nothing wrong in obtaining such testimonials to clarify the position and we see no unusual bias in these testimonials from such outstanding Professors of Orthopaedics in Britishthe language of those documents there is some marginal doubt, in the sense that he is stated to have participated or assisted in teaching. The contention of the other side naturally is that assisting or participating is different from actual teaching. While we are hesitant to swallow such a contention it is not for us to finally pronounce on it, the matter being essentially a technical one. Indeed we have restrained ourselves from finally stating whether the institutions in which Dr. Mukherjee has worked are teaching institutions and whether the Registrars post in which he worked gave him such teaching experience. These two matters have to be decided by the appointing authority. Courts cannot and do not appoint petitioners to posts they claim but lay down the legal criteria and give the correct directions, the Executive being the organ of State to exercise, the power to appoint but in conformity with the legal directions. The State Government being that authority has to take the ultimate decision.20.There is some force in the grievance of counsel for the State that the Court should not ordinarily call for Cabinet papers and start scrutinising the nothings and re ports of the various officers marely because a writ petition challenging the order has been made.When a writ of certiorari is moved, the Court has the power to call for the record, but in case where mala fides is not alleged or other special circumstances set out, sensitive materials in the possession of government may not routinely be sent for. The power of the Court is wide but will have to be exercised judicially and judiciously, having regard to the totality of circumstances, including the impropriety of every disgruntled party getting an opportunity to pry into the files of government. Of course, acts of public authorities must ordinarily be amenable to public scrutiny and not be hidden in suspicious secrecy. W.?, are not satisfied that the High Court in this, case should necessarily have lookedCabinet papers and back records, but the question has not been argued, except to the extent of mentioning that the Court was not in order although the State Government had produced the document on a direction. We leave the matter at that, for thisno speaking order need be made while appointing a government servant. Speaking in plaintitud inous terms these propositions may deserve serious reflection. The Administration should not be thwarted in the usual course of making appointments becauseit displeases judicial relish or the Court does not agree with its estimate of the relative worth of the candidates. Is there violation of a fundamental right, illegality or akin error of law which vitiates the appointment ? The overlooking of alleged superlative abilities claimed by Dr. Mukherjee is not of judicial concern but of public resentment and individual injustice, if wrongly discarded by an appointingthe absence of proof of bad faith or oblique exercise or other error of law. Nor is the corrective judicial review but an appeal to other democratic processes which hold sanctions against misdoings of any Administration and its minions. The Court is not to evaluate comparatively but to adjudicate on legal flaws.22. Viewed in this perspective, was the High Court right in issuing a writ ? We are disposed to say yes. Undoubtedly, appointments to posts need not be accompanied by speaking orders or reasoned grounds. Then the wheels of Government will slow down to a grinding halt, tardy as it is even otherwise. And comity of constitutional instrumentalities forbids unfriendly interference where jurisdiction does not clearly exist. Granting this institutional modus vivendi, has the Court gone away? No, and we will give our grounds.23. While officious interference with every wrong government order is not right, here the 1st respondent has complained of violation of the regulations which bind State and citizen alike. Although the State need not always make a reasoned order of appointment, reasons relevant to the rules must animate the order. Moreover, an obligation to consider every qualified candidate is implicit in the equal opportunity right enshrined in Arts. 14 and 16 of the Constitution. Screening a candidate out of consideration altogether is il legal if the applicant has eligibility under the regulations. And for such a drastic step as refusal to evaluate comparatively, i.e., exclusion from the ring of a competitor manifest grounds must appear on the record. Such being the leg al perspective, let us test the present order of government by those canons.24. The explanatory affidavit of the appellant State and the records fairly produced by it before the Court disclose that Government has adopted a turbid attitude. Did it disregard Dr. Mukherjee out of band for want of Indian teaching experience in an Indian teaching institution ? Shri Jagdish Swaroops submission is that such experience is essential. If so, a violation of the regulation, as interpreted by us, has bee n committed. Failing in this the State falls back on another basis that his foreign experience is not shown to be from an approved teaching hospital, which may be clever but not straightforward. To be cute in Court may not correspond with being correct in administration. The 1st respondents case for the post has not been considered from the legal angle.26. It was the duty of Government to be satisfied, on reasonable materials, that (a) the U.K. hospitals relied on by the 1st respondent are teaching institutions an explained by us after a study of the spirit of the statute; (b) the posts of Registrar in which he worked for 3 years involved teaching functions, the question being looked at fairly, not by semanticand quibbling on words like participating in teaching; (c) the testimonials or written testimony from any British (or Indian, for that matter) Orthopaedics Professor will taken at its face value except where grave suspicion. taints such document,academic men being assumed to be veracious in the absence, of clear contrary indications; (d) Indian experience, if any, of the 1st respondent, will also be paid attention, provided it satisfied the dual tests contained in the regulation. We are satisfied that the State has made short shrift of Dr. Mukherjee by preliminary screening. The nothings and reports. and vacillating opinions entertained by Government, at various stages do not detain us as they are incidental to any administrative decision and cannot be espied with a suspicious eye by Court. Governmental ways may not In familiar for forensic processes but for that reason cannot be suspected.27. We have already observed that at the first flush the 1st respondent looks like eligible and highly qualified but there may be more than meets the eye. Government may investigate and be satisfied about the real qualifications. In the interests of justice and in view of the ambiguous thinking on this question at administrative levels we regard it as necessary to give the candidates time till the end of January, 1975 to produce evidence of the 1st respondents teaching experience in teaching institutions as interpreted by us. Government will give a fair consideration to the qualifications and relative worth of all the candidates. Length of teaching experience will certainly be a relevant not necessarilyThe quality of their experience, their academic attainments and the intellectual ability to stimulate students in the specialty and the investigative curiosity likely to be imparted to the alumni these weighty considerations will promote public weal in a country hungering for talented doctors. Governments sole concern, we feel confident, will be to Get the most capable, in the public interest and inthe hope that this happy wish will not fail we proceed to issue the substantive declarations and directions.