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

2. The Indian Statistical Institute is a Society registered under the Societies Registration Act. It is governed by the Indian Statistical Institute Act, 1959 (hereinafter referred to athe Act). Its control completely vests in the Union of India, respondent No. 5. It is wholly financed by the Union of India. All the functionof the Institute are controlled by the Union of Indiaas is evident from the various provisions of the Act. Under S.8 of the Act the annual work programmes of the Institute and the general financial estimates in respectof such work are settled by committees appointed by the Central Government and the Institute obviously cannot undertake any research or training programmes without the approval of the Central Government. The Institute carries on an integrated programng and research inand application of statistical techniques in other disciplines. The Institute has been declared as an Institution of National Importance under the Act. Under S.4 of the Act the Institute has been empowered to grant such degrees and diplomas in statistics as may be determined by the Institute from time to time. In accordance withprovisions of S.5 of the Act the Central Government pays to the Institute in each financial year such sums of money as the Government considers necessary by way of grant, loan or otherwise to enable the Institute to discharge efficiently its functions including research, education, trainingproject activities and statistical work relating to planning for national development.S.5 of the Actdeals with audit of accounts of the Institute by auditors duly qualified to actrs of companies under the Companies Act, 1956 and selected by the Central Government afterwith the Comptroller andS.7 of the Act restricts the powers of the Institute to alter, extend or abridge its memorandum or rules and regulations and to sell or otherwise dispose of its property acquired with the money specifically provided for such acquisition by the Central Government except withprevious approval of the Central Government. S.9 empowers the Central Government to constitute a committee, inter alia, for reviewing and evaluating the work done by the Institute and the progress made by it as also advising Government generally on any matter which in the opinion of the Central Government is of importance in connection with the work of theS.11 of the Act empowers the Central Government to issue directions to the Institute. S.s the Central Government to assume control over the Institute under certain extremeThe Institute receives grants from the Central Government to meet almost the entire expenditure on its plan andactivities. The chief executive body of the Institute is the Council, respondent No. 2, consisting of 25 members including three representativeof the Central Government. The Council is headed by the Chairman elected to that position by the Council bysimple majority from amongst the names proposed by the President or membersthe Council. The election of the Chairman of the Council is governed byof the Institute.4. The initial appointment to carry out research and teaching work is to the post of Professor. The next post in the hierarchy is ofr and the highest in the hierarchy is the post of Distinguished Scientist. In order to discharge the administrative and academic responsibilities of the Institute, a Director, with distinctive administrative and academic acumen, is appointed by the Council, respondent No. 2. Shri B. P. Adhikari, respondent No. 4, was appointed as the Director of the Institute by an order dated, 1979. This order of appointment has been challenged by the petitioner on various grounds.According to the petitioner he wass of the Instituteat the relevant time. To start with, he was appointed to the post of Economist in the Indian Statistical Institute on, 1962 on a monthly pay of Rs.in the time scale50 plus special pay of Rs.per month. Within a year he was promoted as Professorin the time scale00 with a starting pay of Rs.er month, and fromhe had been holding the post of Research Professorin the time scale0. On, 1968 he was madeand entrusted with all technical matters, administration and development plans relating to planning and regional survey units and training in Delhi. Hegiven a special allowance of Rs.per month over and above the payin the time scalep. The petitioner has been responsible during the periodfor the creation and promotion of several new activities of respondent No. 1 in DelhiSpecialised training in National Planning and Econometrics for M.(2nd Year) trainees of respondent No. 1 was started in Delhi under the direction of the petitioner. In August1974 the petitioner was designated as Head ofer andwas also appointed to the Institutesof Administration. On, 1976 he was elevated to theof Distinguished Scientist withpay of Rs.per month plus allowances. The petitioner has held responsible positions as Visiting Professor, Fellow, Chairman, Consultant, Research Associate, Lecturer etc. in various Universities in India and in the United States of America and England. He has been a member of the Planning Commission, Government of India from January 1971 to1973 and he has also been a member of the Sixth Finance CommissionJuly 1972 to1973. The petitioners work has been acclaimed in the international as well as national spheres. His work is ratedas evidenced by the award of Dadabhai Nauroji Memorial Prize for Economics in 1974 and the Jawaharlal Nehru Memorial Fellowship in 1975. In 1976 the petitioner had the distinction of presiding over the annual conference of the Indian Society of Agricultural Economics. People abroad have also conferred recognition on the petitioner.6. The petitioners scientific output has been substantial. He has been active in research and he has published books of importance on Theory of International Trade, Scheduling the Operations ofReservoirs, Indian Planning, Planning and the Poor etc. His contributions in the form of articles in collaboration with Indian and foreign economists have been published in several journals in India and abroad. One of hisProf. Arrow is a Nobel Laureate. At present the petitioner is engaged in research on the following subjectsty and Basic Need, Development Policy in Sri Lanka, Kerala and Punjab.l Comparisons of Agricultural Growth and Development in South Asia in the. It is claimed that a comparative evaluation of the achievements of the petitioner with those of respondent No. 4 clearly shows the superiority of the petitioner over respondent No. 4. Respondent No. 4 had joined the Institute as Professor in the pay scale of Rs.He was appointed in Delhi and was incharge of the evening course in Introductory Statistics. He served in Delhi for about a year and then went to Calcutta and continued as Professor fromto 1974. In contrast, the petitioner had started at a higher salary of Rs.m. plus a specialpay of Rs.p.m. The petitioner had been promoted to the higher post of Research Professor onin the time scale00 while respondent No. 4 had been promoted to the post of Research Professor only in 1974. At that time respondent No. 4s appointment as Research Professor had been objected to ashad not published any technical papersince his joining the Institute inThe petitioner was senior to respondent No. 4 as he had been appointed to the higher post of Research Professor earlier than respondent No. 4. On, 1976 the petitioner was promoted to the position of a Distinguished Scientist. The petitioner is senior to respondent No.and all otherof the Institute. Thepetitioners elevation to the position of Distinguished Scientist came much earlier than that of respondent No. 4. The petitioner has been holding the position of Distinguished Scientist since, 1976 while respondent No. 4 was not a Distinguished Scientist till his impugned appointment as Director. Respondent No. 4 has won no laurels in his sphere of work and his scientific output has been negligible. Thusfrom all accounts the petitioner was more qualified and his achievements in all spheres were much higherthose of respondent No. 4 or for the matter of that, than those of any other scientist of the Institute.8. The Institute has anl consisting of the following members among others. Director (asChairman of thehe Institute is governed by its memorandum, regulations and2 provides the procedure for the appointment of aThe appointment of the Director shall be made by the Council on the recommendation made byconsisting of(i)Chairman of theCouncil (as Chairman),(ii) Two experts approved by the Council.Before recruitmentIn the meeting of the Council, respondent No. 2, on, 1979, Shri P. N. Haksar, respondent No. 3, the Chairman, reported about the absence of the Director and other allied matters and invited the attention of the members to the fact that the Director of the InstituteProf. G. Kallianpur is unable to devote full time to the Institute. The Council felt that since the Institute required full time attention it was desirable that Prof. Kallianpur should be requested to continue in the post of Director on a whole time basis. The Chairman wasto write to the Director conveying the views of the members and after getting a response from Prof. Kallianpur, to take further action. In case Prof. Kallianpur resigned, the Chairman wasShri P. N. Haksar,>3. Prof. S. S.Prof. M. S.tly another meeting of respondent No. 2 was held

Court's reasoning:
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