Case: B.S. Minhas Vs. Indian Statistical Institute and Ors

cannot be and should not be advertised or publicised, because they are posts for which there should be no lobbying nor should any applications be allowed to be entertained. Examples of such posts may be found in the post of Commander of Armed Forces or the Chief Justice or the Judges of the Supreme Court or the High Courts. But here bye law 2 requires that the vacancy in the post of Director should be publicised and hence we are making the above observation in this paragraph.26. The grievance of the petitioner is that he has not been considered for appointment to the post of Director although he is far superior to respondent No. 4. If there had been due publicity as required by bye law 2, he and many others like him would have applied for the post. Shri Garg, however, contends for respondent No. 1 that the petitioner can have no grievance as his case was duly considered as stated clearly in the affidavit of respondent No. 3, Shri P. N. Haksar, Chairman of the Council. We accept the statement of respondent No. 3 that the case of the petitioner was considered by the selection committee but it is a little unfortunate that there is no written report by the selection committee for consideration by the Council. No minutes of the proceedings before the selection committee have been maintained and none were circulated amongst the members of the Council along with the agenda of the meeting nor were any such minutes placed before the Council meeting when the name of respondent No. 4 was approved by the Council. There is also nothing on record to show that the Council was at any time informed as to what names had been considered by the selection committee or that the name of the petitioner had been considered but respondent No. 4 was found superior. It is always desirable that in public bodies the minutes of the proceedings regarding selection should be properly maintained in order to obviate any suspicion or doubt and such minutes along with the relevant documents should be placed before the final authority entrusted with the task of selection for appointment.27. A lot of argument has been advanced by Shri Tarkunde that the achievements and accomplishments of the petitioner were much higher than those of respondent No. 4. His contribution in the matter of research had won him high praise. He had written articles and books of great merit. On the other hand the achievements or accomplishments of respondent No. 4 were much lower when compared to those of the petitioner. Be that as it may, it is not for the Court to determine who is the superior of the two candidates and who should be selected. It is for the authorities concerned to select from amongst the available candidates. The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant considerations before coming to a conclusion. But the real difficulty is that in the absence of publicity as contemplated by bye law 2, it cannot be said that all other qualified persons like the petitioner were also considered by the selection committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.28. Shri Garg, however, contends that the office of the Director is a very high office and this honour is conferred and not demanded and an application for this office from the candidates was not at all necessary as in the case of the Judges of the Supreme Court, High Courts and other constitutional posts of Comptroller and Auditor General of India etc. The selection committee composed of eminent scientists of high reputation must be knowing about the reputed men in the field of statistics and it is expected that they must have considered the case of those persons also.29. For reasons we have already indicated, we find no force in this contention. There is no provision for publicity in case of the constitutional posts of the Judges of the Supreme Court and High Courts and Comptroller and Auditor General of India. Rather in the very nature of things, they cannot be and are not publicised. But in the case of appointment of a Director, bye law 2 clearly provides for publicity and it can only be with the object that all concerned may know about the vacancy and either applications or recommendations may be made for the post and the names of the eligible candidates may be brought before the selection committee for its consideration. In the state of the record before us it is not possible to say that the members of the Council considered the case of the petitioner and other candidates like him before approving the appointment of respondent No. 4. It is true that the members of the selection committee and those of the Council were experts in their respective subjects and were eminent scientists and we must proceed on the basis that they acted in all fairness and no oblique motive can be attributed to them. Indeed Shri Tarkunde did not allege any mala fides against the members of the selection committee or the members of the Council.30. On the admitted position, no publicity in regard to the vacancy was done at all. No information about it was published even on the notice board kept in the various branches of respondent No. 1 at Calcutta and other places. Nor was the information published in the journal of respondent No. 1. There was clearly a breach of bye law 2 in making appointment of respondent No. 4 and there was no adequate material before the Council on the basis of which the members could apply their mind for determining as to whether they should approve the recommendation of the selection committee in regard to appointment of respondent No. 4.

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

Explanation:
1[ds]22. Having regard to this decision and in view of the facts and circumstances in the present case there can be no doubt that respondent No. 2 is anwithin the meaning of Art.12 of the Constitution and, therefore, the writ petition filed by the petitioner is competent and maintainable and the objection raised by Shri Garg cannot bethe instant case, it is admitted on both sides that no publicity whatsoever was given in respect of the vacancy. The contention of Shri Garg, however, is that thehaving no force of statute,with its requirementof respondent No. 4 as Directorof respondent No. 1Shri Tarkunde, however, contended that assuming that theis not statutory, even so respondent No. 1 was bound to comply with it.In view of the pronouncement of this Court on the point it must be held to be obligatory on the partof respondent No. 1to follow theaws have been framed for the conduct of its affairs to avoid arbitrariness. Respondent No. 1 cannot, therefore, escape the liability for not following the procedure prescribed by2.25. Compliance with thisalso seems to be necessary in the name ofIf the vacancy in the post of Director had been publicised as contemplated by2, all the persons eligible for the post may have applied and in that case, the field of consideration would have been enlarged and the selection committee or the Council would have had a much larger field from which to choose the best available person and that would have removed all doubts of arbitrariness from the mind of those eligible for the post. Of course, we do not wish to suggest for a moment that appointment to every post must be made only after advertising or publicising thet would not be right, for there are quite a few posts at the top level which cannot be and should not be advertised or publicised, because they are posts for which there should belobbying nor should any applications be allowed to be entertained. Examples of such posts may be found in the post of Commander of Armed Forces or the Chief Justice or the Judges of the Supreme Court or the Highlaw 2 requires that the vacancy in the post of Director should be publicised and hence we are making the above observation in this paragraph.26. The grievance of the petitioner is that he has not been considered for appointment to the post of Director although he is far superior to respondent No. 4. If there had been due publicity as required by2, he and many others like him would have applied for the post. Shri Garg, however, contends for respondent No. 1 that the petitioner can have no grievance as his case was duly considered as stated clearly in the affidavit of respondent No. 3,Chairman of theCouncil. We accept the statement of respondent No. 3 that the case of the petitioner was considered by the selection committee but it is a little unfortunate that there is no written report by the selection committee for consideration by the Council. No minutes of the proceedings before the selection committee have been maintained and none were circulated amongst the members of the Council along with the agenda of the meeting nor were any such minutes placed before the Council meeting when the name of respondent4 was approved by the Council. There is also nothing on record to show that the Council was at any time informed as to what names had been considered by the selection committee or that the name of the petitioner had been considered but respondent No. 4 was found superior. It is always desirable that in public bodies the minutes of the proceedings regarding selection should be properly maintained in order to obviate any suspicion or doubt and such minutes along with the relevant documents should be placed before the final authority entrusted with the task of selection for appointment.27. A lot of argument has been advanced by Shri Tarkunde that the achievements and accomplishments of the petitioner were much higher than those of respondent No. 4. His contribution in the matter of research had won him high praise. He had written articles and books of great merit. On the other hand the achievements or accomplishments of respondent No. 4 were much lower when compared to those of the petitioner. Be that as it may, it is not for the Court to determine who is the superior of the two candidates and who should be selected. It is for the authorities concerned to select from amongst the available candidates. The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant considerations before coming toconclusion. But the real difficulty is that in the absence of publicity as contemplated by2, it cannot be said that all other qualified persons like the petitioner were also considered by the selection committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.For reasons we have already indicated, we find no force in this contention. There is no provision for publicity in case of the constitutional posts of the Judges of the Supreme Court and High Courts andd Auditor General ofIndia. Rather in the very nature ofthey cannot be and are not publicised. But in the case of appointment of a Director,2 clearly provides for publicity and it can only be with the object that all concerned may know about the vacancy and either applications or recommendations may be made for the post and the names of the eligible candidates may be brought before the selection committee for its consideration. In the state of the record before us it is not possible to say that the members of the Council considered the case of theer candidates like him before approving the appointment of respondent No. 4. It is true that the members of the selection committee and those of the Council were experts in their respective subjects and were eminent scientists and we must proceed on the basis that they acted in all fairness and no oblique motive can be attributed to them. Indeed Shri Tarkunde did not allege anyfides against the members of the selection committee or the members of the Council.he admitted position, no publicity in regard to the vacancy was doneall. No information about it was publishedon the notice board kept in the various branchesof respondent No. 1at Calcutta and other places. Nor was the information published in the journalor respondent No.There was clearly a breach of2 in making appointment of respondent No. 4 and there was no adequate material before the Council on the basis of which the members could apply their mind for determining as to whether they should approve the recommendation of the selection committee in regard to appointment of respondent No. 4.Having regard to this decision and in view of the facts and circumstances in the present case there can be no doubt that respondent No. 2 is anwithin the meaning of Art.12 of the Constitution and, therefore, the writ petition filed by the petitioner is competent and maintainable and the objection raised by Shri Garg cannot be