. P.K .. RAMA.CHANDRA IYE.R & ORS.

UNION OF INDIA & ORS.

December '16, l 983 ..

[D: A. DESAI & v' BALAKRISHNA EkADl, .TJ.] . . . . . . .

C01tStitution of J1tdia, 1950 Ari{{:/cs J.2 and 32~Indian Gouncif of Agricuftllral Rcse<ircl;-Whether -instrunzentiifity of Cent.rat Govern1nent-Whetl1e~ covered by the exp'rssion 'other auihorities'~Whether antendable .to writ jurisdiction

Articles 14, 16.and J9(d)-Pay , ctllc of posi of Professor revisetf-Existing i11ctunbents ndt ginted tlte benefrt oj ievised scale- New inCunzbents _ granted the revised scale-:Defence of e111ployer was there. was nzarginal rei, ision in qualifiCfl.fiohs for the post-Action whether disrilninatory a11J unfair. :

. Article 16-Selection Co1;1ittee-hther.l:cis poer 10 relx .cssentl:al i; uli fications for the post-jurisdiction OJ Courts to interfere ttdtfl "decision of. Selectiow.

Conunittce-When arises. ·

A-falafides~Selectjon Co111n1itlee-Qua/ificatio11 f.equirenwit relaxed to suit preferred .candic(at~-Sck"ction what/ler yiti"ated.

": l'ubli~ e1np/yni~1u~Experience to be f value and utility 1nust be ai::{juired after educational qualificaiion obtained-Not while acquiring. Post-graduate qualifi-· catiun. .

-"Jndian Counil vf Agriculfui, al Research 1977, Rules.13aiu."14 ;. Fixation "of

- -.-J .. )1iinitnu111 qllalifying 1narks for tiliglhiiitJ . for viVa-voce test..,.-Further fixatiOn of ( quilti/yi11g 111ark.V to be Obtaid at viva-11oce for final selection-validity Of

Supre, nw Court Ruie~ 1966 Order XL& Constiiution oj India, 19.!0 Aticle LJ1.: f¥rit petition disf!?lssed by .High Court al/owing prelilninciry objection that. it izad no jurisidiCtiOn ta entertaitrpeiition_.:...High Couri becoii1es functus officio and decisioi

 Oft 1nerits inconseqential-Suprf!tn"e Colirt. in .later. case over-ruling the same pre-' litninary objeclion:........:.Si1p1em~ Court. e1ititled. to exa1nine matter n merits-Review .ffltition .n1fiintaii1able .

. The Royal. Con1n1ission of <igriculturc coi1stituted in 1926 reconunende<l . tho setting .up of ihe"Imp.erial Council Of AgriCult'uriil RescarCh-ICAR~ I~ July. 1929, JCAR \Vas registered as a SociC.ty ·\vlth its offici; in. the Secretariat. Jt \vas , whq11y financed bY the Governn1ent of .Jndla. By a resolution dated. JanUary 5, 1939 the Governn1ent. of India.modified the-status of ICAR from a. department of the. Secretariate to one f ah attathed office of the Governent_ 9f India .. Rec ruitrnent to various posts in ICAR \vas made through the Federal Public Service

Corllmission. Its expenses were voted Upon as part of the expenses ·incllrred .in

th~ Minstry Or Agriculture. The control of the Goenuneiit. of Indi~ perffieated

....

P. K. lYER v. UNION. 201

through aµ its activities. To it was transferred the esearch Institutes set up

A by the Government of India. In orde~ to make.it finil.nci.ally viable-a cess _was levied. and ihe pr~ds wete haned. over to ICAR .fl?r its use. ·

On the advent of independence, the linperial Council of Agricultural :RCsearch was redesignated as Indian Council _of Agricultural Rarc~. With. effect frotn April 1, 1966 administrative Con~J, Ul over IARI and IVRI and. other institutes was transferred to IC~~R. · . . . .

Rule 18 of the !CAR Rules provided that the Society shall establish and inaintain its ownom.ce, ResearchJnstitutes and Laboratories and that the appoint-· meats to the _various posts .should be made in ardan~- wiih the Recruitmea, t Rules framed by t\le Governillg Body. .This rule \Yich was kept in beyance. in January 10, 1966 was bro1:1g:hf into operation in. itS .. entirety .eft'eCtive_ from Apri1-1~

1974. Tlie consequenCes of.this rule becoming operative was that e.secretariat o f~9AR ~<ised to pe an attached oce of the-Ministry of Food and Ag_ric; Ulture. ·

The Indian Veterinary. Research Institute \vas one of the.institu(es und.Cr the adininistrative control of ICAR. The poSt of ProfesSor ln JVRI in 1958 carried the paY. s6a:le bf Rs. 700-1250." There were 6 psts of Proresor in. various disCiPInes.

Three posts of Profe"ssors were held by. the petitioriers in Wdt Petition N.o. 587/75.

On the introduCtioil of the pay-scales 'recOmmerided by the University Grants Comrnission, the p.iy-scale attached to tl1e Post cif Professor in the Institute -was ievised to Rs. 1100-1600 during the year 1970-71 and: six new posts o:f _ProfeSsOrs in .Various d.isciplines created. Each of the petitioners who was a1ready holding ..

the posts of Professor was not given the nefii of the upgraded pay-scales,- while the new incumbents recruited t(>the newly created post were awar.ded the revised

'p"yscales. This led to , disturbance in the inter se seniOritY in the cadre of .PfOfessors.

In the Wdt Petition \V.P. No. 587/75 to this Court it was contended that 3.s the petitioners fulfilled the minimunl' qualification•· prescribed for thC post after ui)ward reviion Of the pay-scales4 denial of the revised Pay-scales was dis:. criminatory and violative of Article 14, and troughly .arbitrary and u_njustified.

On behalf of respondents it was asse(ted that the evised scale was not.to-~ autotnaticatly granted to the petitioners-the eisting holders, as the newly crOO.ted

pots in the cadre of PrOfessor was not the same as the. exist1ni-post~ as there Was margin.al revision in the qua!ifications for_ the post of Professor in the revised SCC'le.

. Thpetitioner i.n the Re'viCw Petition.No .. 4J77 sought the reView f the]udginent of this Court dated 3d October, 1975 'in the Special Leave Petition No. 2339/ 15.

He had filed a.wi:it petition in the High court:questioning the conectness of tbe. setOCtion o{respondent No .. O.for.the post of Senior Bio-Cbemistas he dfd not possess the" essential qualification, .and the order remOving him from the me'mber-ship of the post-graduate f~Culty' Or_ Indian Agriculture Research Jnstituie. ·.

Th_iS petition was '.fesisted by the respondents, on the.ground that neither ICAR nor IVRI was either a 'State or other athoiity' Within the mecinlngof the epression -· in Article .12 of the Constitution. It \Vas further colltended that the Selection.

Comffiittee.had the-po\ver to relax the 6.ssential , qualificati0nS pf:itainh1g to expefi~ . ence, and t.hat the Committee consisted of experts who were highly qualified persons, able at evalu'ating and assessing the relative merits of each of the candidateS, and that, it \voiild be w1wise to substitute eX.pert's decision by Court's decisions. The \Yrit Petion was dismtsSed by the High Court on_ the groun_d that ICAR being

: '

F .

 S~PREME COURT REPORTS [19S4]"2 s.c.R.

A· " a s?ciety registered utdc< he SocietieS Registration Act; it was "neither a 'State

or other authority' withih the contemplation of Article .12.. It was further bcld : that the relationship belw.:en the petitioner 3.nd iCAR was governed by fhe rules .aOd the bye-laws of the Society and ICAR 'vas free to fill the post of Senior Bio- :chCmist in any manner it liked, and that'as the Petitioner was not removed from the rrielnrship of the F3.culty,_but cased to -be a n1en1bcr, it was not necessary

to hear hinl. ·

This Court upheld th~ decisiOn of the High Court.by its j, udgnrent in S.L.P.

No. 2339/75 and also rejected R.P. No. 79/76,

The Petitioner in Re'4l';'V .. Petition No. 80/76 so.ught review of the jud!; ment in S.L.P. No.702.of 1976 which was disposed of along with S.L.P. No. 2339/1975. . . . - . .

The appellant in C.A.· No. 1043of1981 filed a writ petition "in the High Court allcigi'ng that he was selected_ f9r the post of Senio_r Computer in the indian Agriculture Statistics Research Institute~ an affiliate of lCAR." . The ICAR set up the.

, Aricultur.11 Scientists ReCruittnent Board-ASRB which fran1ed rules in 1977 artd decided to hold a competitive examintion in 1978 to recruit scientists. S~Icc

tion was to be made _by a competitive exan1inµtion Con1prisii1g a written test carrying ·. 600 marks in the aggregate and viva-vOce test carrying 100 marks. Jt _was furthCr 'prOvided that anYone to be elgile for bing ad1nittCd in the merit list should also : have the additional qualific~-tio.n .of at least obtaini.ng. 40 1narks in the viVa-vot:c

test.

The appellant contended that he has eCured 364. n1arks out of 600 in the written examination and 38 1narks out of 100 In the viva-voce tpst, ind that the actio11. of Boilrd in fixing ni.inimum qualifyiilg marks in the viva-vocc exa1nination

arid basing the final selection on this criterion lacked both the aO.thority of law and :rules. The High Court dismissed the Writ Petition in lilnine.

' .

Allowing the Review Petitions, Writ Petition and Appesa.l :

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HELD : 1.

(i) In writ petition No. 587/75, the !CAR is directed by a { mandamus to put tho thice petitioners in the revised scale of Rs. 1100-1600 sanctioned for .the post of Professor effective from ihe day when others selected as ProfC:ssOrs in sister disciplines. were awarded the revised scale of Rs.

1100-1600. [247 A]

(ii) In Special Leave Petition No. 2339/75, the !CAR is directed by a iniridamus 'tO. award to Dr. Y.P: Gupta the scale of Rs. 1800-2250 fron1 the date _the same was given to rpondent.No. '6,".Dr. S.L. Mehta. The arrears payable " putsuant to the direCtion shall be paid within 3 mon_ths.

Dr. Y.P. Gupta to be taken back as a men1ber of the Faculty ofthe post-graduate school of IARI with_in • periQd of > month•. [247 Bl

(iii) In S.L.P; N:o. 702/76, it is directed that a'special Assessrr_ient Corimlittee may be set up to examine the case of Dr." T.S. Ra1nan for promotion to S-3 grade

. . . within a p"eriod. o.f 3 months. (247 DJ. . . . . ·

(iv) ln.C.A. 1043/81, the ICAR. a'nd ASRB are directed to Prepare the merit list in respect of those candidates who were called for viva voce test, but were not included in the merit list On the aggregate of ffiatks obtained by them. If there · ls a vacancYand the aPpellant cOmes wihin the zone of selection he shall be

P. K. IYER V. UNION 2o3

appointed. The appoifltn1ent \vould be prospective and would beeffective from the date of the appointn1cnt. [247 E-F]

2.· (I) _Apart fro1n. the criteria devised by fhc jt.idicial elicta, the very birth of ICAR and its continued existence over half a century and its present p0Sitio1'l would Ieive no dOubt that ICAR. is almost an inseparable adjunct of the GOvern- 1nent of India having an outward forn1 of being a So_cif!'ty. it could be styled as a

Society set up by the State and therefore; would be_ an instrumentality or. agency B of the Central Governmcrit and therefore, it is 'other authority'. within the meaning of the expression in Article l~, and the writ ju.risdiction can be invoked against it. [216 BJ •

(ii) !CAR.came intoexistcnce as an integral dcparti11c1H ofthc.Govern111ent of. 1ndi.-i. and liter on became an attached offi:_ce of the Central GoVerntttent. The composition of.the lCAR as evidenced by_Rulc 3 could not have been more gov~ crnn1cntal in character than any dcpartrii.cntof the Govermnent. The Governing . Body of the Society' Cbns, ist of a President of the Society,· \Vho is n'onc other than a

Cabinet Minister of the Governriicnt of India.

Other. n1en1bers of the Governing ' Body are en1inent scientistS. nof exceding nine in 1fun1ber to be appointed. by -the President; there is none outsirie the Governn1ent inthe GoV'c_riling . nady.

Rule, 98 1nakes it abundantly clear that the Rules of _the SOciety can neither be.altered nor amended exCep~ with the sanctio.n Of the Governn1ent of India. - Rllle 100 shows that the Rules becarnc ojJerative after they were approved by the Governn1ent . Of India. The audited accounts of the Society along with the auditor.'s report'

thereon were to be placed before the Society at its An1iual General Meting and also on the table of the Houses of Parliament. Rule 18 provides that the appoint-

1nert to various posts under the s.ociety shall be 1nade in accordance with the , Recruitment Rules frarned for the purpose by the GovenliJig .Body with the prior approval Of the Government of India. The ad1ninistrative ad -the financial con~

teal of the Governn1ent is alf pervasive.

The rules and bye-laws of the Society can be framed, amended or repeal"ect only. With the. sa'ncion of the GoVeinment of India. [219 E-F; 220 B-FJ •

Sabhajif Tewary .V. U.O.I. [l975J3 SCR 616 -distinguished and imited and.

U; P. Warehousing .Corporation v._ Vijay. Narain [1980J 3 SCC 45~ referred to.

The guarantee of equ.alityin all its pervasive character enables. this F Court to ren1ove discri1ni1la.tion and to restore fair play in action . .{226.C]

The instant" cil.se, is a glaring example of discrirrllnatory treatn1ent accorded .to old experienced and highly qualified hands with an evil eye and uneq'ual hand.

No attempt was made to sUstain tbe scales of l)ay for the post of PrfessOr on the doctr.ine of classification because the classification 9f existing incumbents as being distinct ai1d separate froni newly recfu.ited hands with fimsy change in essential qualification would be wholly irrationar and arbitrary.

Te case of the petitioners fof being.put in the revised sccile of Rs fI00-1600 from the date" on which newly created Posts of Professors in Sister disciplines in IVRI and other institutes were created and filled in revised scaie iS nanswer<' ble and mut be conCeded l226 .B~DJ

Randhir Singh v U.O.l (1982] 1 SCC 618, referred to.

4 . The mo1nent the High Court held that it had no JuriSdictiOn to entertain he writ petition, it becan1e /tfltctus officio and there[ore, its decision on the merit H

of the C.ontcritionis or no consi;:Quen~ and.at any rate could not concltide the

mat~Cr.- Now that.it has been held _that the writpetiion is maintainable.on the finding th!l-t IC~R and its_affiliates ae othCr authority within the mening of the_

xpr.cssion in Article 12, justice ckmands that the court must examine th(: on tentions On merit. The ptelimii:ia:ry objeciion. over-ruled and ·e ievie\v petition allowed. [229 F-G] I

 s. ,· It is wll--settfed -th; t expefience tol, Je .of valu~ and utility n1ust be acquired

afr tl).e educ'1tonal qualification is obtained-and hot while acQUirtng the postgraduate quahficatiOn. [232 A]

._in the ii!stant case, preParing thesis Clfter giadu<'tion {o'r acquiring post-~ graduate degree .would rtot count toWr:n:ds presCrlbed experienct -qua_lificatidn. ln

th~ case of Ph.D °.cteg:eeawarded on research the situaticn nlay be diffe; e11:t. .[232 BJ

6. 'The Court must IoOk \Vith.resp~, ct tipbn th~ pcrformi>.nce Of dutieS by experts in. their respective. fields.

However,_ the .task of.. ushering. z .Society based. 'on rule of law is erl1:rust.Cd io this court and it cannot abdicate its function$. Once'

it is fllPSt satisfactorily establishedtl'l:at the Selection Conunitteci did O:ot. have thC power to relax i.:ssential qualification peftaining to expefience, ' .. the eritire process -Of 5".ilec.tiOri of thi 6th respondent was in contr:avention of the established nom1s

prescribed. by the advertiseinent and Power of the Sdectio~ Coffimittee and pro.; . ccdure for fair and jusl seleC.tio11 and equality in the ffiatter of public mployme1lt and. to_ rectify resultant inji.i.stice and esiabiish -constih.itional value this Court must interfere. [234 I>-EJ · ·

_Stale "fBihar v. Dr. Asis Ku111a~ Mukherjee [i975] SCR 894, referred .to.·

. ' - ' ' .

In the instant CTJ$e, the first Selection Committee examined. the suit!lbility of seven crndidates including _the petiiiollef~ and pecifically recorded its, finding that none of the candidates .. interviewed or cOnside.red in absentia including : . respondent No. 6 Who w3.$ selected at. a la:ter. stage~ fulled al .the esseiltial quali_ficatio-ns laid down for : the post.

Ttie Committee recommended that .. the post be re-advertised -after mplyfying the essential qualificatiOn jn the . mt'ltter of exPerience, Viz. '10 yea1; s research exper.ienCe in the field of protein Chemis_try? .. The -post. was the post of Senior. Bio-chemist. Jnitialy experience . required wasin _the fiei<l of Nutrition with p:iticulilr reference tO Qu(l'ntity and · .Quality of protein in food grainS as.evidenced by published work i, yhile'the ampli- . fied esselltial qualification was-researchexperience ill the field of protein Cheffiistry ..

It is difficult to efface the ipression that the amplification was done .keeping in View the qualification'- whic~ respondent No;' 6 ha.d .. ·oreovcr respondent No. 6 , appeared not tc c8-rry on research. in th.e line of Nutrition o.r protein Chemistry

 3rid therefore h~. did not fulfil the qualification at <'ll and he could not therefore haVe even bee~ Called for interview by the Selection Committee. The .Selection

Committee alsO did nOt h.ave thepower to relax the essential qu"lificati'on, fo.r th~ . post; The seleCtjon of respOitdent NC1; 6 is. contrary to rules and orders. aiid in violation o( prescribed norn1s~ He. was ifieligible. for the poSt when seleCted a~~ his selcction .. nd appointment has to be quashed and set aside, [230 GG, 233 E-F, 234 F] '

1.· Th~High Court wasclearly in err.or in.obsl.:"rving that eiter Dr. Raw_n (petitioner in R.P. No. 80176) was not hopeful of getting the job or he had some ·

other reasons for Dot applying for the same .and therefore his grievance cannot

__ , ...

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P."K. IYER V. UNION. 205

be entert"ined. This is clearly contrary to record. -He had applied earlier and - w_ s entitled to be called--fcir interview as noted in the proceedings. It w~~; obligatorY upon the second selection -Comrriittee 10 _inform -him to appear for te intervi'e and adequate .steps should have been taken to give the intirriation '"because he was attached t9 the institute and .was in ctive sCr1ice of.the institute and intimaiion to him would not require any herculern effort on the. p?.rt :of the Committee.

But he.-has been-assesSed thrice 'by the Assessment Committee for p~Omoti0n to S-3 grade. and found wantin~. Te Insti.tute shll set up a speth.•l ~sessment Committye t9. 3ssess his sllitability. for promotio~ t, o .S-3 gr_ade by xamltfing his work.from 1976 .. He is.not entitled to any further relie.f. [239 0-240A, 241 EJ

A combipd-re3ding. of_Ruies 13 and 14; indicate that, it i~ open to the Agricuitu:faI Scientist Recruitment Bciard to prescribe minirhtirn marks which the candidates must obtain at the written test before becoming eligible for viVa-voce test. After the Candiclaie obtain~ minimum marks or more at the written test he .becomes. eligible "for being called for .viva-, voce test, nd he has t() appeir at the

viva-voce test.

Neither Rule 13 nor Rule 14 nor any other rule enables. tti~- ASR'B. ,'-to prescribe nlinimum qualifying marks to be obtained by the_ cilndidate at the

viva-voce fus_t.

The language of Rule 14 clearlynegatiyes any s"ucb power in the.

ASRB when it provides that after the, written test if the c..1.ndidate hfl, s obtaiqed 1Tiinim, um marks, he is eligible for being Cfllled for viva ... voce test and the final merit list would -be. drawn up according to the aggregate of marks obtained-by the candidate .-in. : wd°tten teSt plus viva-voce examination. {244 D-fJ ·

Ii:i the instant ase; (CA N~ .. 1043/81) ihe :adctiti6nal qualificat!On \vhich :ASRB prescribed tO_ itself that-the candidate must have a further qualificatiori obtaining minimum markS in the viva-vocc. test dves not fi.nd place in Rules 13 ilnd and 14. If such power is 2!aimed, it hs to be explicit and. cannot be read by neces'sary .iinplication for the Obvious rcasoll that such deviation from the rules . is likely. to cause irrepearable and irre'versible ham1. onW an additional qualification Of obtainin.g.mininlun1. marks.at_thc viva-voce test fa adhered to, a candidate _who. may figure high-up in thC metit-list was likely.to be rejected on th"e ground . that h~ .has not obtained n1ihimum. qualifying marks at vivavOce test.. s list prepared in contravention of the Rules caiinot be sustained. ·However, it" is not possible at this late stage to reject' the entire seleCtion and it would be equally ii:nproper tO disturb the selec.tion. of those who had bn_ selected and :ppointed way back .in 1978. If there is avacancY.and if the appellant comes within.the zone of selection on the aggregate of inarks obtained by hin1. his case shall -be con~ Sidered for appointm<!nt prospectively and nOt rctropsectively. -1244 G-H; 245 C;

~D;~ . . .

 ORIGIN~L JuRISDicTION : Writ Petition No. 587 of 1975 (Under article 32 of the ConstHution)

with.

Review Petition No. 4 of 1977 (@SLP (Civil) No. 2339 •of 1975 &

Reyiew Petition No.' 79/76) .

• H

and

Review Petition No. 80 of 1976 (Arising '0;1t of SLP (Civil) No. 702 of 1976)

and

Civil Appeal No. 1043 of 1981 . . . . .

Appeal by Special leave from the Judgment ;111d Order ., dated .• tire Sth May, 1980 of the Delhi High Court in Civil Writ Petition No. 553 of 1980.,. ~

c .YogeshwarPrasad and Mrs Rani Chhabra for the Petitioner in WP. 5.87/7.5 & RP. No .. 4/77.

M.G. R amchandran for the Appellant in CA.· .No. 1043 of 1981.

 Abdul Khader, Mi.<s .A" Suhhashini and Girish Chandra for the D Respondent in WP. 587/75.

K.G. Bhagar~ Addi. Sol: Gene; a/ and Ms. A. Subhashini for the Rcspoudent in RP. No. 4/77. .

'b,. Gobwdhan and C.V. Subba Rao for Resnc-1id.enl m CA.

E No. 1043 of 1981.

' ' .

B.N .. Lokur, and C.N. Ralnaparkhi for Respondents. 2-7 in WP. No. 587 of 1975.

Judgment of the Cour; was delivered by

DESAI, .J.

Tn th.is group '.of writ pet1t1on, civil appeal. special leave ptitiqn and review petitions, a_ common que.:tion_ of la\v. is raised whether Indian Council of Agricultural Re.search ('lC AR for short) and its affiliate Indian Veterinary . Research Institute (lVRI for shortfare either itself tlieSta{e or such other authority .as would be comprehended in the.expression 'other authority in Art. 12 of the Constitution 7

. Re: 'W.P. No. 587/75 :

No.

. . .

Pe; itioner No. l was Professor of. Animal Patholcgy, pet1ticmr 2 was Professor of Animal Genetics and petitioner No. 3 was

',.c,,;,.....--.. . ( - •

. . 1

I ...

-·~ -

• ~. K. IYER ":UNION (Desai, J.) 207 • Professor of. Veterinary Parasitology, all attached to IVRJ. Six posts of Professors one each in Animal Pathology, Animal Genetics.

Velerinary Parasitology, Animal Nutrition, Bacteriology and' Physiology were created on the i1itroduction of the post-graduate wing in IVRI in 195.8 .At the relevant time the post of Professor carried the scale of Rs. 700-)250. Of the six posts, first mentioned, three posts of Professors were held by the petitiners in their respective discipline, On lhe introduction of the scales recommended by th.e University Grants Commissio~. the pay scale attached to the post of Professer in IVRl was revised to Rs. 1100-1609: After the up-· ward revision during the year 1970-71, the cadre of Professors in IVRJ was expanded b'r -creating six ne\\'. . post of Professors in vafiouS disciplines. Surprisingly, ach of the petitioners, , who was already holding post of Professor, was not given the benefit of the upgraded scale attached. to the post of Professor wliile ol) the other hand. the

newincumbent recruited in . the newly created posts in the year

1970-?°f were a warded the revised scale of Rs. 1100-1600. This led .to the disturbance in the inter se seniority in the .cadre of Professors and manifested an anomalous. position that the old incumbents of • the posts. of Professors such as petitioners, continued in the prerevised scale of Rs 7bO-l250 while .the new incumbents were put in the revised scale of.Rs I 100-1600 both having the.designation of Professor and there is no appreciable difference in the qualifications attached to .the post .. )Vhen this was. brought to the notice of the authori\ics concerned, the ICAR With the con•urrcnce of the Minisfry of Finance ). resolved .'as per. decision dated April 6, 1972 to award the· revised scale of pay attached to the post of Professor to the peNioners, b11t this was subject to the condition that it wollld not be automatic but

~ the existing incumbents of posts may be considered for revised scale "" along with other suitable .Persons.

Tt was imp'.ieit in the condition prescribed that the petitioners wi~ have to stand in. competition ;, ith others applications, if there be any, and go througli the ha+ard of a . . °" fresh selection for tlle post each one was alreadv. holding.. This is

the' first grievance voiced by the petitioners in the writ petition con-. tending that the petitioners were qualified for the posts of Professor.

and that eah of them was holding the post from 1963, 1970 and 1970

•. respectively. TM petitioners made. various representations basing their claim inter a/ia on fair play, equality of opportunity.in.the matter of public employment arid equal pay for equal work as well as the provision co11tained in Fundamental Rule -23. The petitioners ~Jsci .contend that they fulfil the minimum qualification prescribed for the

 post.a_fer upward rt:, vision of the paysca1e; and they_have the. requfsi1&. experience and ihat they are performing the same or identical duties . . . .

... •

c '

.. SUPREME COURT RF.PORTS

. [1984] 2 S.C.R.

a; are being performed by ne\VlY recruited. Professors in sister di~" ciplines, and that denial to the1n of the revised pay scales for. foe post of Professor .aparf from being discriminatory .and violative of Art: 14 . . . . is thoroughly arbitrary ancf unjustified. lt .appears that pursirnnt to the didsion dated April 6,' 1972, the ICAR 'issued an adyertisement on May 21, 1974 inviting applications for the post of ProfeBsor in . . Animal Pathology,. Animal Genetic$ .and Veterinary Parasitology

 in the revised scale of Rs. I J00,!600: These were 'the posts alrea.dv held by petitioners. The advertisement set .out the .essent.ial and desirable qualifications for each post. Petitioners contend that the duties pertaining to the post of Professor in the upgraded scale

are' the same as performed by the petitioners and that this action . of inviting fesh applications for post already held by the petitioners

disclosod a cover attempt t0 remove the petitioners. 'from the posts held by them for years. ·-Petitioners further contend that only three posts held by the. petitioners have been advertised inviting the aj:lpiications for fresh recruitment while there we.re others .\vho were ho'ding

posts .of Professors in the pre-revfsed scale .and. to whom bendlt of automatic upward revision was granted and this disclcscd n-0t cnly the bias of the ICAR but also subjected the petitioners to grcss discrimination. Serious allegations of bias :ind malafid.o have been madeagainst respondent No .. 6, the Director or' IVRI, and Director General ufJCAR, which.need not be set out here. It may, however, lie .stated that tho.ugh the \aious functionaries workihg .in IVRI and TCAR are highly qualified persons, profesional rivalry had led to such poisonini; of the atmosphere and character assassination had become so rampant and the. environment had become so snffo- ,

catig that the Government of India had to appoint a Committee -·-1 presidedover by late Shri P.D. Gajendragadbr, retired Chief Justice · of the Supreme Court' with wide terms of reference which. amongst others included' the recruitment and personnel policies. of !CAR as

well as Institutes a!id Centres working under it and io suggest rnearnrcs '!" for th, eir improvemen\. It is alleged that absolutely incmrcct, imprc- ' per and prejudiced .entries are made. ii1 confidential reports with a vieiv to harming foe. areer of the persos who have fallen froin the grace of the Directo.r al)d that therefore, the C'ourt, should .lift the veil. of the so'called society and peep i1ito the realities of life. The . petitioners ,, ccordingly prayed for an appropriate writ, order or . direction to quash ihe advertisement dated May 21, .1975 inviting . applicatfons for the posts nf Professors in three subjects already held by th.e petitioners and to confirm 'the petitionerS'in the aforemeiltion(d p:ists and tc'i give them the benefit of the !'fOVised.scale from the date from whkh. fr was given try Professors in sister disciplines and to quash

,. -

P. K. IYER v. UNION.(Desai, J.) 209

the adverse entries in' the confidential eports of the three petitioners.

On these averments petitioners filed the present writ petition under Art. 32 of the Constitution.

Re : S.LP. No. 2339/75 with R.P. No. 4/77 :

one Dr. Y.P. Gupta filed Writ Petition No. 276 of 1972 in the High Court of Delhi questibning the correc.tness of the order removing him as member of the faculty of the post-graduate school of Indian Agricultural Research Institute {IARI for short). Petitioner Dr.

Gupta alsll' questioned the. validity of appointment of Dr. S.L. Mehta respondent No. 6 in the High Court to the post of Senior , Bio-chemist in IARl and claim.ed. that he was entitled to. be appointed .to that post. This petition was resisted by the respondents primarily on the ground that neither ICAR not IVRl is either a State or• other authority within the meaning of the expression in Art. 12 of the Constitution, When the matter cameup before the Division 'Bench of the Delhi High Court, a .direction was given that in view of the importance of the questions that arise for determination in the writ . petition before the court and in view of the .various decisio.n which . 'have to be recpnciled, the petition should .be heard by a larger Bench.·

Pursuant to this direction, the matter came up before a Bench of five Judges. The larger Bench formulated four questions for its considerations :

''.I.

Do the petit1oners have legal right to chaUene the appointment of respondent 6 ?

Has .the Director-General of the !CAR acted in con' .travention of any legal obligation in making the appointment. of respondent 6 .?

.3.

Has the said appointment vitiated by the mala fides of Dr. swaminathan and/or of Dr. Naik?

Was it bad because of the want of qualifications .of Dr.

Mehta 0r non-compliance with the prescribed procedure in_ making it ?" ·

The court answered the fint question against the petitioner

hlding tQ.at ICAR is a society registered under the Societies Registra-

. .

tl'on Act and it is neither a State nor other authority within contempla- H tio< of Art. i2 of the onstitution. The court further held that

• G

210 SUP.REME COUl\T REPORTS

( 1984] 2 S C R.,

the. relaii.on between the petitioner and ICAR' is gMerned by a con- tract and the rles and the bye-la\vs or tl1e Society .and !CAR was free to fill in the post of Senior Bio-chemiste in any manner it llked.

The court observed that .the petitioner being a mere employee, he has no legal right agafost the employer and in the .absence of 'any statutory elemen{ governing his emplo)'ment, the relation is governed purely by .a contract. and a breach. of contract, if any, would. not

permit a declaration in favour of the petiticner. Bri<fly, the .court held that the remedy by way of writ is not available against !CAR.

On the second question the court held that the Director-General owed no obligation or legal duty in making the ppointment of the sixth respondent which can be. enforced by a writ. petition. Questions

Nos. 3 and 4 were cdea!Uogetber and it was held that the pleadings . were inadequate to permit a finding. of ma]a fide and in the absence

of proof there. is nothing to show tl1at .the appointment of the sixth

resondent was vitiated either by mala fides. or by non-compliance with procedure..

Consistent wjth .these findings, the writ pe.tition . of Dr. Gupta was dismissed. Simultaneously, the writ . petition filed by one Dre T.S. Raman being Writ Petition Ne. 669/72 was dismissed. by the common iu4gmcnt:

Dr. Y.P: Gupta ii.Jed S.L.P. No. 2339 of J97.5 in this Court.

On O:ofober 6, 1975, this Court.directed a notice to be issued to ibc respondents to shw cause why special leave to 'appeal shoui<l 1iot be .. gra.nted. When the .m1ttCr came up again before this Cm.irt on July 2!, 1976, Mr. Lokur, 'learned counsel. appearing for the !CAR

:'>._

.stated to the Court that the respondent-council would consider the ·.: ·-f.

question of taking back the petitioner as a member of the postgraduate faculty ofIARf. After recording this statemei1t, the Special

leave potition was disljlissed. Petitioner. Dr. Gupta filed Review .Petition No. 79 or 1976 requesting the Court to review its. order dismissing the special leve petition. This review petiticn was rejected . y on October 27, 1976. As second review petition wns not .barrecl" at the relevant time, Dr. Gupta filed Review Pctitien No. 4/77 which is.· directed to be heard in th.e present group of appeal, writ petition and special leave petition.

 J?e : R.P. No. so of1976. : Dr.T.S. Raman whose Writ Petitin No. 669 of 1972 was heard along with Writ Petiticn of Dr. Gupta and which was a!s'o dismissed by the common judgment, filed Special Leave Petition No. 702 of 1976 in this Court. This petition was

 R dismissed by the .Court on Augu.t 30, 1976. Dr. T:S. Raman filed Rovieiv P.otition No. 80 of 1976 which iS being heard i.n this group. . . .

----.;.,' - ..

..,...

P. K. IYER v. UNION (Desai, J.) . 211

Re: CA. No. 1043/81 : Appellant Dr. Om Prakash .Khauduri fifod Writ Petition No. 553 of 1980 in the High Court of Delhi alleging .. that he was selected for the post of Senior Computer with Ifidian

Agricultural Statistics Research Institutes, ana affiliate of.JCA'R. iCAR set up Agricultural Scientists Recruitent Board (ASRB) which deCided to hold a competitive examination to recruit scientists to be appointc'd under various disciplines. ICAR framed rules setting out the terms and conditions for ac,\mission to. the competitive examirition .. Appellnt applied for admission to the ompetitive examination iii 'Agricultural Statistics' . .'discipiline. The written test was ldd froni 1st to 4th February, 1978: The Board incharge of . the selection and appointment on. the comparative merits as evidenced by the performance in the w1'itten examination selected 20 candidates icluding the appeUant as aving obtaine~, e presribed qualifying marks for. the purpose .of viva voce examilra'tion which was held on . April !0th and llth, 1978. Aftedhe viva voce test, 13 candidates

1iuro declared as successful.and were offered appointment as scientists in the di, eipline 'Agricultural statistics'. The appellant failed to qualify for the. same. According to the appellant, 21 vacal)cies iomained unfilled: Appellant contends that he h1!'il secured -364 marks out of 600 in tl\.e written examination and 3il m'arks out of

JOO in the. viva voce test. It is alleged that the appellant was declared . Un5uccessfu\ because the .Board incharge of the examinqtion has by itself .determined without any authority that anvortc who obta; ned less.than40 marks atthe viva voce examination would not be eligible for selection for the posts. It is therefore, contended that the action 'of the BJard _in fixing minimum qualifying' in arks in the viva voce ·

examination and basing the final selection on this arbitrarily .fixed criteriou lacks both the authority of law and rules and. thai the B.o.ard has acted arbitrarily and without the authority of law; Appellant accordingly .. made representa.tions \)ut failedto cvqke a sympathetic reply, and therefore, the appellant filed a writ petition in. the High . Court of Delhi which was dismissed -in limine on 'the ground that .the ·

writ petition against ·, the resppndent was not maintainabl~. Hence .,

this appeal by special leave.

ordinarily one would. sincerely .deplore th.e delay in disposal of a problem brought before the Court, but occasionally, one comes ac1:oss a case in which the sheer passage of time and the fast removing

.. scenario of changing pattern of .law resolves the. dispute to some extent ..

Mr.- Lokur appearing for I<; AR raised a preliminary objection

... . '

... c

that ICAR is not an agency or instrumentality of the State and therefore it is not .comprehended in the expression 'other authority' within the meaning of the expression in Art. 12 of the Constitution and thereVire the High Court was fully justified in throwing out the petition at the threshold: Mr. Lokur directed a frontal attack drawing sustenance from the decision of Delhi High Court that JCAR being a Society registered under the Societies Registration Ac.t and being . neither a State ncrother authority within te tontemplaticn of.Art. 12

nor an instrumentality of the State, writ jurisdiction of the High Court cannot .be , invoked against it. Sabhajit Tewary y. Union of : India & Ors. <ll was the sheet anchor of M;. Lokur's extensive sub-. missions because in.· that case a Constitution Bench presided over

'-~-. c

by the then Chief Justice ruled that the Council of Scientific and lndi1strial Research, a&J_ciety registered mider theSccieties Registra:

lion Act, was neither a ST!\te .nor other auothrity within the contemplation or Art. 12 and therefore, the writ petition was held not to he : maintainable against ii. And even though this matter had became part-heard .in 1980 and the hearing was resumed in 1983 before a different Bench, the vigour of the sustained attack was not the leasi dimmed even "though the law expanding the width and ambit of the expression 'State· and 'other .. a.thuority' in ..<rt. 12 had taken strides culminating in Ajay Hasia tc. v. Khalid Mujib' Sehrarardi & Ors.

etc, <2> And Mi. Lokur continued his submission with unabated fury even though the learned Solicitor General Shri K. Parasharai:t appearing for the Union of India fairly conceded that in view of the circumstances disdosed in the case and the tre.nd of the decsioris, it is. not possible to contend that ICAR and its affiliates JVRI and JAR! walud riot be other authority.being instrumentalities of the Siate and . against which writ jurisdiction could be invoked . • A very brief resume of the history of ICAR commencing from its initial set up and its development into its present position would show that as a matter of form, it .is a society registered under the

Societies, Registration Act but substantially when set up it was an adjunct ofthe Government of India and has not unde.rgone. any noteworthy change .. On the advent of the provincial a'!tonomy under the Government of India Act, 1919, 'agriculture' and 'miimal lmsbandry' .ca1e under the heading 'transferred sUdject' with the result that they came within the exclusive jurisdiction of the Pre v)ncial

Goyernent Development or agriculture and research in agriculture

H co [1975) 3 s.c.R. 616.

(2) [19811 2 S.C.R. 79.

- P. K. IYBR v. UNION (Desai,.J.) 213

became the_ responsibility of the Provincial Government. Even then a Royal Commission on agriculture was constituted in 1926 to enquire into the agricultural set up and the rural economy of the country a.nd to make recommendations to consider what firm steps . -are necessary to be tal<en by the Central Government in this behalf!

The Commission in its report recommended the setting-up of Imperial . Council ofAgricultural Research, Acting upon this recommendation,

Government of India sent a telegram to the Secretary of. State on April 24, 1929 informing the latter that the process of setting up of the Council is under way and that when setup Council would be a Society.' On May 9, 1929, Secretary of State appr"oved the proposal of the Government of India subject to variations mentioned therein .. By ·its Resolution dated May 23, 1929, the Central Government directed that Imperial Counci!" of Agricultural Research should be registered as a Society under the Registration of Societies Act •. X.XI of 1860.

The Resolution further provided that with respeci to the grant to be . . made to the Co1; ncil to meet the cost of staff, establishment etc.; the Government of India decided that for reasons of administrative convenience, it should be in the same position as a department of the Government of Indi; t Secretariat. The Imperial Council of Agricultural Research was s.et up in June .1929.

A direction was also given that the research institutes were to be m_aintained by the Council.

Intheir counter-affidavit filed in the High Court of Delhi it was conceded in paragraph 27 that the Imperial Council of Agricultural Research should in future be an attached.office and not the department of the Government to be entirely manned by Government staff and the secretariat staff of the. Council was to. be paid from the grant to be given by the Government for its administration and they would be Government servants and' the Secretariat would be department of the Government of India .. In July, 1929,. ICAR was registered as a Society with its office_ in the Secretariat as an attached office of the Secretariat. By the Resolu\ion dated August 4, 1930, Government of. India directed that for reasons of administrative convenience "the Governbr-General in Council has now,. decided that the Imperial Council of Agricultural Research Department, as the Secretariat of the. Councir will henceforth be designated, should be. a regular departm_ent of the Government of India Secretariat under the Hon'ble Member incharge of the DCiJartment of Education,

Health and Lands" .. A note was submitted .on December 29, '!937 to the then Viceroy conc.erning the status and position of the !CAR as a Department of the Government in which it was recommended that .JCAR should 1:wt only be maintained as a distinct entity indep_endent pf the Government of India and with a view to achkving

SUPRIJME COURT REPORTS . [l 984] 2 s.c.R

this positici~. the office of the ICAR should not i~ future be a Department of the Government of Jn4ia but should 'be an attad1ed oijice. Thi.s prqpo, sa\ was approved by the Viceroy on January 14, 1938 .simultaneously .expressing this anxiety io sustain the prestige cf lCAR. Ti, e .next step .; s one taken.by the Resolulio~ dated January 5, 1939 by which the Government of India modified the status oft.he !CAR from the Department of the Secretariat lo one of an attached office

of the Government. of I;1dia; A letter was addressed to the. High Commissioner for India in London on January l 4, l939 intii\iating to nim that the Secretariat of the !CAR will. cease to be a Departmer:l o(the Government ofIndia'and will be an attached office under the

Departmet of Educatioi1, Helth and.La.nds with effect from Jnuary

JS, 1939. Till then recruitment.to various posts in !CAR was-made

thrngh Federal Public Service Commission and this was to be con- -tinued even after the change in the stati1s of ICARas an attached office as evidei1cd by the Jetter dated August 24, J938 by the Joint Secretary.to Government of India to tl; e Federal Public Service Commission.

AbilL was introduced in .the Central Legislature styled as the "Agritultura\ Produce Cess Bill, J 949''. The statement of object and reasons ccoinpanyi11$ the lii11 re_cited that the Central Government have provided grants to the tune of Rs. 84 lakhs for tl1e cxponditureor l\le Council and took notice. orthe fac.t that the Coui1cil has practially no source of-income other \ban the contriution from the C.entral Revenue which may be unstable. depending upon lhe . state of finances of the Central Government: It was further .observed that in order. to place Council on a more secured financial positicn, it has been decided to levy a cess at the_ rate of 1/2% on ihe valucof certain agricultural coi:nrnodities and the p; oceeds of theproposed . ..... .. .. ' . . . cess are estimated to amount in a normal year to about Rs, 14 lakhs.

The bill w.as moved.- In the debate upon the bill, a statement was F Iilade on behalf of the Government of lndfa that the .Central Legisla- . lure will retain its full .right of interpellation and of moving resolutions and will still vote on the grant of the.'petmaneni staff, and some of the activities of the CounciL . kother words, an assurance was given that .the Central Legislative Assembly \Vil! have positive coi1frol

over the affairs'.of the Council to the some extent and degree when it was a Department br an attached office of the. Government of India.

On the advent of!ndependece .. The Imperial Com:icil of Agricultura1 Research wane:, designated as Indian .Council of Agri.cultutal Research. 'With effect from April i, 1966, administrative contr~I over IARI and

IVRI and other institutes was transferred. to ICAR simultaneously placing the Government staff of the institute~, at the disposal of JCAR/ as on foreign sevice. This is evidend by a cmmunkation dated

P. K .. IYER v. UNION(Desa0J.) 215

--< April 19, :J966 _addressed by the Ministry of Agriculttiral, Food, ..

Community, Development and Cooperation to' the Directors of Central Research. Institutes. An option was given to \he members of thestaff f. the Institutes, 'administrative control of which was transferred to ICAR and the date for exercising tlje.optlon was extended by the communication d.ated November 9., 1966. In .the meantime, the Government of Indfa enforced the new rules framed by

the ICAR effective from January 10, 1966 keeping rule 18 in abeyance .

.,_ With the change in the status of the ICAR, Department of Agricul- . tural Research and Education ('DARE' .for short) was set up in the

Ministry of Agriculture and \t came into existence on December )5, -

-- _,

1973. Th.is Department was -set up with a view to providing necessary Government linkage with ICAR. Tue major fm\ction of the Department was to look after all aspects of agricultural research and educe tion involving coordination between Central_ and State agencies; to attend io all matters relating to the ICAR; and to attend to all matters concerning the development of new• technology in. agriculture~ animal husbandry and fisheries, .including such functions a> plant and animal - . introduction and exploration, and soil and land use survey and planning. By this very Resolution, the Director General of ICAR was _ concurrently designated' as Secretary to Government of lndir, in the DARE. The posi!i011 of !CAR was clarified t.o the effect that in .:'. the reorganised. set-up, the ICAR will have the autonomy essential for the effective functioning of a scientific organisation and deal 'with sister Departmenis the Central . Government, with State .. Governments and also with international agricultural research centres t -tlir6ugh the DARE. Rule, 18 .of the. ICAR mies which was keptin. abeyance on January I 0, 1966 was bro right into operation. in its entirety effective from April l, !974 as per communication <!ated ' March 30, 1974 by the Ministry of Agriculture to the Secretary, ICAR r . The consequence of Rule 18 hecoming operative was that the Sec- ·

retariat of ICAR ceased to be.:an attached office of the Ministry of Food and Agriculture and the Society shall fnnctiOn as 'wholly financed and controlled by the society'. This last sentence hardly' •makes any. sense: Till

0 Rule 18 was .kept .in .abeyance, recruitment to rcAR was done through the Union Public Service Commission 'as evidenced by the le.tter date, d August 24, 1938 of the Government "

of India to the Secretary, Federal Public Service-Commission; Simla, Rule 18 as stated earlier became operative from April I, 1974. Rule ' 18 proides that 'the Society shall establish and _maintain. its own

.office, Research- •Institutes and Laboratories. The appointment

to_ the various posts under the Society's e.stablishment was to be made in accordance with the Recruitment Rules framed for the purpose

G. ,

' .

by the govcrnmg body with the approval of the Government of India",

Apart from the criteria devised by the Judicial diet the very . birth and its cofltlnued existence over half a century nd its present ·

position would leave no one in doubt that ICAR is alsmcst an inse-. _parable adjunct of. tlie Government of India having an outward form

of being a Society, .it could be styled_ as a Society .set up by the , State and therefore, would be an instrumentality of the siate. ·

lCAR start¢d as a Department of the Government of India having an office in-the.Secretariat even though it was a Scciety regietered under the Societies Registration Act. It was wholly financed

by the Government of Iildia. Its budget was voted upon as prt of the expenses incurred in the. Ministry of Agricuitm:e. Even v.hrn its §talus underwent a change, it wr.s declared.as ai1 attached cfticc of the Gover.nment of India. The control of the Government cf India permeates through. all its activities and it is th~ bcdy to wliich tLc Government .of India transferred Research Institutes set up by it. .

In order to make it financ; ially viable, a cess was levied meaning thereby . . ' . . that tile taxation power of the Stale was invoked, and the proceeds of the tax were to be. handed over to ICAR for its use.

At no stage, the. control of the Government of lndia ever flinched and since its inception it was setup to carry out the recommendations of the Royal Commission on Agricnliure. In our opinion, this by itself is sufficient to make it an instrumentality of the siate.

[twas however urged that The Council of Scientific and lr.dustrial Research (CSIR' for short).a society register<d under the Sccietks.

Registration Act and having an ident; cal set up as well as ccnstituti.cn: was held not t0 be an instrumentality of the State er 'other authority' under Art. 12. In Sabhajii Tewary's case, this Court held that the.

CSiil did not .have a statutory character like the Oil and Natural Gas Commission, or the Life Iilsuranc<! Corporation or Industrial

Fiance Corporation, and it was a society .incorported in accordance with the provisions of the Societies Registration Act. The fact that the .Prime Minister is the presidei1t or that the Government appoints nominees to the Governing Body or that the Government may ter- · minate the inembership will not according to this Court establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and. industrial research, the institution and financing of specific researches,' establishment of development' a1\d assistance. to special instittions

• ..

\----~

I -

',•.

P. _K. !YER v. UNION (Desai, J.) 217 •

for scientific study of problems affecting particular industry in a trade,· the utilh; ation of tbe result of the researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible manner, and these aspe9(s are not sufficient to reach the eondusion that the Society was ari agency or ; nstrumentality of the Government. This Court also referred to. some decisions which have held that the companies incorporated under the Companies Act and the employees _of these companies do not enjoy the protection available to Goverrinient servants as contemplated in Art. 311. This Court accordingly concluded that CSIR is not an instrumentality of the Government comprehended in the expression 'other authority' within the meaning of Art. 12 of the Constitution, and the writ jurisdiction cannot be invoked against it. Much water has flown down the 1amuna since the dicta.in Sabhajit Tewary's case and conceding that it is not specifically. overruled in . later decision; its ratio is considerably watered down so as to be a decision confined to its own facts. The case is wholly distinguishable on the facts apart from the later indicia formuld by the Court for ascertaining whether_ a body is 'other authority' withihn the meaning of Art. 12. A-mere c01riparison of the history of ICAR as extensively set out herein before and the setting-up of CSIR would clearly show that ICAR came into existence as a department ()f the Government, continued to be an .attached office of the Government even though it was registered as a society and wholly financed by the Government and the taxing power of the State was invoked to make it financially. viable. and to-, which independent research -institutes set up by the Government were transferred. None of these features was present in the case of CSIR and therefore, the deci_sion in Sabhajit Tewary's case.would .render no assistance and would be clearly distinguishable. . .

The ratio, if any, of the decision in Sabhajit Tewary's case was : ' F examined by a Constitutin Bench of this Court in Ajay Basia's case and.it was held that that 'decisio'n is not an authority for the proposition that a society registered under the Societies Registratio.n Act, 1860 can never be regarded as an authority withih the meaning of Art. 12.

The Court further held that having. regard to the various features enumerated in the judgment in Sabhajit Tewary's case, the conclusion G was reached that the .CSIR was not an agency of the Government, but the Court did not rest its conclusion on the sole ground that CSIR was a Society registered under the Societies Registration Act, 1860; and on the contrary proceeded to consider various other features of. the Council for ariving at the conclusion that it was not an ageny

H - of the Government and therefore, it was not an authority for the

. . . . • 218 SUPREME COtlRT REPORTS [1984] 2 s.c.R. ·

A · proposition that a society registered under the. Societies Regisfration Act for that reason-alone would not be cowprehended in the expressiOn 'other authority'. Jn Ajay Hasia's _case, this Court after taking note of the decisions in Ram_ana Dayaram Shetiy v. The International Airport of India.& ars.'ll and U.P. Warehousing Corporatio~ v. VijayNarain, l'l and .after extracting _various . indicia for determinig whether B, the particular body was an agency or fost; umentality of the Siate within . the meaning of Art.. 12, prbceeded .to examine 1vhether the society which had establisheil Regional Engineering College, Srinagar a11d which was registered' under the_ Jammu & Kashmir Registration of Societies .· Act,· 189!1 was an .instrumentality or agency of the State and would ' be comprehended in the expression 'other authority' in Art. 12 .. fo C .. t)lis .connection the Court observed as under : .

H ..

' ' . ·- . . . . • "It is in the light of this discussion that we must now proceed to examine whether the society in the present case is an "authorit, y" falling within the. ddntion of "state" in . Article 12. Is it an instrumentality or -gency of the Government ? The answer must. oviously be in _the affirniative . if we have regard to the Memorandum of Association and the .Rules of the_ .Society. The composition of the Society is dominated.by the representatives appointed by the_ Central Government and the Governments of Jammu & Kashmii; .

Punjab, Rajastlian and Uttar Pradesh with the approval ·· of the' Central Government. The monies. required for running the college are provided entirely by , the Central . Government; and the Government of Jammu & Kashmir

 and even if any other monies are to _be received by the . Society, it C\(n be done only with the approval of-the State

arid the Central Governments. The Rules to be made by the Society are also required to have the prior approval . of the St.ate and theCen_tral Governnients a_nd'the accounts of the. Society have also to be submitted to both the Governments , for fueir: scrutiny and satisfaction. The . Society is also t-0 comply with. all such .dfrections as may be issued by the State_ Government with the approval of the Central Government in respect oLany matters dealt with in_ the report of the Reviewing . Committee. . The _control of the State and the Central Goverments is indeed so deep and. pervasive that no immovable .property of the_ Sodety can be disposed .

. (I) (19791 l S.C.R. 1014 at 1042.

(2) [1980] 3 s.c.c .. 459: .

., .

P. K. IYER v. UNION (Desai, J.) 219

of in any manner witl1out ilw approval of both.the G6verri- .· ments. The State and 'the Central.· G.overnmenis have even the power to ai>point any other_ person or persons to be members of the Soeiety and any member of-the Society other than a .member representing the State or the Cenlr_al

Government can be removed from the membership of the Society by the State Government with the approval of the Central' Government. The Board of Governors, which is in charge of general superintendence, direction and conliol of the affairs of Society and of its income and property is a!So _largely controlled by nominees of the State and the Central Governments. It will thus be. seen tha.t the State Government and by reason of the provision fodipproval, the Central Government. also, have full coµtrol of tlie working .of the Society. and it would not be incorrect to . say tba't the Society is mereJy a projection of the Slate and the. Central Governments and. to use. the wotds of Ray, CJ. in Sukhdev Singh's case (supra), the voice is that of the Staie and the Central Governments wd the bands are also of the State and the Cental Governments. We mst, therefore, hold that t)l.e Society is an instrumentality or agency of the. State artd the Central Govern1nents ind it is an 'auihor'ity' .\vithin .the meaning_ of Art. 12.'' .. "

. - . 4 -

Applying _the criteria, there is little doubt that ICAR is . an

•. E instrumentality or the agency of the State. It came into existence .. as an integral departinent of the Government of India and later on t-- became ari attached office of the 'Central Government. 'I.he com~ • pesition of the ICAR as evidenced by Rule 3 could .not. hllve beeri ·

, .

more governmental in character-than any department.of the. Govern' merit. The Governing Body of the Society would consis.t of a President of the Society, who is none other than the Cabinet Miriistei' of the Government of India for the . time being incharge of Agricul, ture; the Director-General, a distinguished scientist to be appointed by Government of India would be the Vic~-President and the Principal Executive ·officer cif the Society. He is concurrently appointed as Secretary to Gove.fnmenfof India. Other members of the Governfog Body are eminent scientists. not exceeding nine in number to be . appointed by the President that' is the Minister; not more than five . . persons for their idterest in agriculture to be appointed by the President

that is the Minister, three. membets of Parliment and Aditiondal/ Joint secretary to the the Government of India in the Departinent of Agriculture to be nominated by that Department; one person, appointed

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the Financial Adviser of .the Society:· There is none outside the.

Government in the Governing Body. Rule 91 deals with.the finances and.funds of the Society and thesources of income are the cess kvid by the Government under the Agricultural Produce Cess Act and the recurring and. non-recurring grants from the Government of India .. The Rules of the Society were initially framed by the Government of India and Rule 98 makes it abundantly clear that the.)' can neither be. altered nor amended except with the sanction of th~

Govrnment of India. Rule 100 shows that the Rules at the relevant time in force become operative after they were approved by the Government of India,. and Came into force from the date to .be . specified by the Government of India. Rule 93 provides for audit of the accounts of the Society by such person or person as may be nominated by the Central Government. Rule 94 provides t)lat the Annual Report of the proceedings of the Society and of all work midertakeri during the. year shall be prepared by the Governing Bcdv for the information of the Government 0f India and the membe.rs of the Society,. and the report and the audited accoun.ts of the Society along with the auditor's report thereon shall be placed . before the Society at the Annual General Meeting and also en. the the .table of the Houses of Parria.ment .. Rule 18 .provides that the appointment to the various -posts under the Society shall lie .made in accordane with the Recriutment Rules. framed for the purpose. by the Governing Body with tJ:ie prior. approval of the Government of India but prior thereto it was by the Union Public Service Ccmmission. The administrative and the financial ccntrcl of ih Gc\flnment is all pervasive. The rules and bye-laws of the Society can l:e

framed amended or repea.led with the sanction of the Government. .of. India. The case before us is rnuch stronger than the one considered by this Court in the case of Ajay Hasia and therefore, the conclusion is inescapable that the Society is an instrumentality er agency. of the Central Government and therefore, it is 'other authority' within the meaning of the expression in Art. 12: As a necessary corollary the writ jurisdiction can be invoked against it and therefcre the decision of Delhi' High Court must be reversed on this .point. The preliminary objection i~ accordingly overruled; • • • Having rejected the preliminary objection; we must now'proceed to examine the contention raised in each petition and appeal on merits.

Before we proceed to examine the contentions on merits,

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nhappy thoughit may appear to be, and howsoever one would like .to avoid reference to it, it is inevitable that , one mut take note of the deplorable state of'affairs in the administration orthe affairs of !CAR and the uncongeniel atinosphere in which :the highly qualified agri: cultural scientists in this country have to work. ICAR w~ s "t up for undertaking Scientific Research in Agriculture, Animal Husbandry and allied subjects on which the entire economy: of this country

revolved till the advent of industrial r.ivolution. it wa_s set up 'with a view to imparting speed and momentum to research in agriculture and allied subjects. so that the countrv may move from the middle ages. to the modern methods in agricultural technology. Unfortu, nately, since its inception, the .domestic atmosphere has not proved congenial to the flowering of the' genius of the country's best talent in agricultural research. This came 1o light when on Mav 5, l 972, newipapers all over 'he country flashed the tragic news that a young agricultural scientists, Dr. V.H. _Shah, who was working as Senior Agronomist and Associate Project Coordinator in the IVRJ had committed suicide by hanging himself in his residence _the previous night.

There was a commotion in the Parliamnt and during the debate in the House, Membe'rs of Parliament regretfully referred to previous suicides commitied by agricultural scientists, one such . being of Dr. M.T. Joseph, Teaching Assistant, Divisian of Entomology, ·

IARI who had committed suicide on Januar!f 5, J 960. These were - . . not stray incidents bui the outcome of persecution,· torture and harrassment emanating fr0<11 t_he polluted environment in !CAR and its affiliates. The then Minister for Fod and Agriculturestated in the Parliament that the Govenment of India was not happy with the procedure of selection of personnel in the !CAR and prcceeded to inform the House that they have not been too happy with the . present system of recruitment which necessitates a scientist applying for posts and being interviewed by selection committees thrcughcut his working career because the system inevitably provides frequent occasions for disappointment leading to frustration. Two decades thereafter we are constrained to note that the things have not improved at all. TM !CAR and the Institutes seem to be so backward looking in their approach to the members of the staff that as late as in 1983 considerable time of this Court was frankly wasted in disposing of the preliminary objection on behalf of the JCAR th.at It is not amenable to this Court's writ jurisdic; tion which would imply tba_t they have skeletons to hide and slrun their exposure to the Court's examination of the internal affairs. To continue the narrative, a committee was appointed under tlie Chairmanship of Shri P.B. Gajendragadkar, ; eitred Chief. Justice of .India and. Vice-Chancellor, University of

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Bombay and at the relevant time Chairman, Law commission with wide terms of reference inter alia to' enuqire into 'the recruitment : policies of ICAR 'and to review the recruitment' and personnel policies pf ICAR, Institutes and Centres working under it and to suggest measures. for their improvement. This Committee submitted its . . Report and we :take note Of oniy one of its findings which reads as ·

:-under:

 "AlLthe.sc complaints have been echoed .by several scientists wh_o met the Comniittee. In the opinin of the Committe, rizese complaints have some substance; The Panel of Advisers also hold the . same qpinion. The Committee is of the view . that most of these complaints a.re due to improper working conditions in the Divisions .. A scientist bcngs to a Divisicn . , where he carries out his work. The atn1osphere in. the

Divisi_on and the fnstitu'te should be conducive to research actiVity. ,-~.u > ' (cmpl)asis supplied)_.

. At another stage, the Committee hs observed that: 'in the pi-, esent circumstances where a crisis cif character and confidence

.sees tohave overtaken the entire administra, t1on of the ICAR, we think it i;; absolutely necessary that recruitment of personnei_:jn all the Institutes with the !CAR should revert to the UP.SC.' Tiie Committee made it clear, it made th~ rcommendation, beta use it . was-satisfied that there is obvious dis-satisfacfrn with the recruitments_ made from J966 onwards.and the Report when browsed through would leave an inefaceable impression on the reader thatthe Committee was-- dissatisfied with internal atmosphere in !CAR and that there was an amount .of dis-satisfaction about the recruitment .policy and that it was such a perceived reality that it wculd be. idle to ignore the same.· Even the Director-General. who is concurrently also the

Secret~; y t~ the DARE in charge f ICAR conceded before tlie Committe_e that it would b.e better if, for some time, the recruitn:rnt . in el) trusted to soeoutsfde agency. 1') In'Chapter XI of ihe Report, _

-tile Committee noted that the complaintr, made against the Head

of -the Division about. no~ giving adequate facilities forwork and the lack ofacademic atmosphere and an absence of. domestic apprcach • permitting free discussion on _researdi projects and results obtained. we're genuine and they required to be remedied.. There 'is further . . . . . . . . . H .(1) Reort of the !CAR Enquiiy Conunittee, 1973; Chapter VII

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(2) Report of.the !CAR Enquiry Cornmitee, 1973, Chapter II page 12.

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p, K. IYER V: UNION (Desai, J.) 223 . . . . . the recommendation with .regard to vertical structure of. Scientists and the scales of pay attached -to each cadre. H is unhappy to note thai things have hardly impoved siJJce the Report of the Commitiee because in. the first writ petitiori, petitioners were again to be exposed to chazards of a fresh .selectioll and the complaint of Dr. Y.P. Gupta is essentially tl)e same as noticed and commented upon by ihe Com- . mittee. · ·

Re : W.P. Nd. 587175: Jn this writ peti(ion, 1he suqstantial grievance is that even though the three petitioners' were 'respectively holding the post of Professor in Animal Patliology~Animal Genetic.s

a~ Veterinary Parasitology from 1963, 1970 and 1970 respoctively,

wil'en the pay-scale for the post of rofessor on the recomi:nendation C of the University Grants Commission. nnderwent an upward revisicn to. Rs .. 1100-1600, .the ICAR instead of straightway granting the .,. · scaleto the petitioners, the holder.s oftlie posts of. Professor, prccceded .• , ·. to.issue an advertisement on May 2i, 1974 inviting fresh applications for the .Post of Professor in the three subjects in. which the petitioners were already holding the post of Professor and simultaneously appoint-

.. D ed some others in different subjects and disciplines as }'rofesscrs and ga vc them the revised stale while the petitioners wre .left to languish in the old scale. According to the petitioners, apart from gross discriniinatioll in. the matter of equal pay for equal work; the dire(:! consequence of this i, infair ana arbitrary action of the . third rospondent was the adverse affectation ill the seniority in the cadre of E Profeswrs because those who were appointed in the revised scale sec.red a. march: over the petitioneis who .continued to langufab in the prNevised scales. Petitioners contend that the. situation is recreated which was adversely commented upon 'by the Minister · in the, Parliament that the recruitment .policy adopted by ICAR nec; essitates a. scientist to apply for posts and being inter:vie, Wed by F. selecti.on committee with attendant hazard and consequent frustration. Petitioners tl1erefore pray firstly fo1 cencelling. tt, e adv~~•"· . ment .issued for the purpose of inviting applications for the posts . already held by theni' a.nd secondly' forgrant1ng thmi .equali!y of.

treatment in .the matter of pay-scales with. other. Professors with whom they stand on terms of equality and are better equipped because

G . of longer experience. Petitfonets ; ay that in 1970-71 si.x posts o.f Professor wre created in the.revised ocale cf Rs. 11(0-lf.CO at IVRI. in .the discipHne Of Poultry Science, Poultry .Pathokgy, Vet<rireiy . Public Health. (Calcutta Centre of IVRI), Biochemistry, Epid<miolc gy

and Veterinarv Public Health (IV.RI Centre) .. The nviscd oca!e

H -\yas .sanctioned for thesf' newly created P<?sts pUrs112n1 to flie recrin~ ·

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.niendation of the University Grants Commission. Let it be made distinctly clear that the revised scales were ., meant for the post of Professor in IVRI not for the post in any particular discipline. Petitioners were holding posts o.f Professor in lVRI, and therefore the

p'otitioners contend that the posts of Professor held by them would be goyerned by the revised scale eff<; etive from the date on which new posts .were created and filled in, in the revised scale. Respondents' rosponse to this contention is that !CAR informed the Director of IVRias per its le(te.rdated Jauary 20 .. 1971 that three posts of Professor in the scale of Rs. 1100-1600 in Veterinary Bacteriolcgy, Anim1l Nutrin and Animal Genetics have be.en sanctioned suject to tho condition that°the existing _posts of Pro_fessor cbviousi in . the same disciplines in ihe sc,.Je of R's. 700-1250 stand abolished.

Shorn of embellishmcrit, it would mean that the posts in the aforem, ntioned three subjects shall hcncefort~ carry the revised w1:e cf Rs. llOOcI600.· The respondents assert that the revised scale was not b' automatically granted to the existing holders cf the posts but 1J.ey .• wo1tld bo considered with other applicants for P.ppoiutment. in the higher scales, if they are otherwise suitable. ll was also '":cl th.t in th:e letter of appointment as Professor each of the petitioner was informod that as the post of Profesor is being upgraded, each of them will have to face selection test. Letter of appointment dated March 25, 1970 in respect of petitioner .No. 2 though relied upon was not on the record but when produced in the course of hearing with an affidavit; it belie1 the statement. There is nothing in the . letter of appointment of each of the petitioners that wh.en the revised scale for the post. of Professor will be introduced,· the incumbent of the _post will have to face a fresh selection. It is not clarified whether the three posk of _Professor. in Veterinary Bacteriology, Animal nutrition and Animal Qenetics in the pre-1evised scale were already filled in and whether the. holders of of the posts got the revised sca 1e . without any fuss of fresh selection .on the part of the respcndents.

-h~ counter-affidavit on behalf of respondeng .Ncs. -1,2,3,4,5 and JJ ·

is conspicuously silent on this point: However,. it is contended that the ·"qualifieations for post of Professor while sanctioning .the 1oviscd scale was altered in as. much as when the. post of Professor carried the scale of Rs. 700~1250, the essential qualification required wcs cnl~ a. p3st:graduate. degreo in the specific discipl'nc' whereas in t_he post cre.ated in the revised scale; a Dcctroate degree in the subject along with the specialisation in the relevant discipl'ne 'was prescrihd ard which fact can be gathered from the model qualifications pmcribed for similar posts: in all the research institutes of!CAR. It was. further as.serted that sarlier the minimum experience required was about

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P. K, IYER v. UNION (Desai, J.) 225

5 years whereas it was reiscd to' 7 years.

Nothing ·\vould be 1nore misleading than this eye viash performance "wl1ich really hides the true intendment namely, to ex.elude the present Incumbents of the .posts of Profess.or and to expose them t9 a competition with same rank outsiders who may as in the. case of Dr. S.L. Shah score a march in the na1ne.of 'scleCtion \vhich cnerallv leaves a_ grey afea. Petitioners Nos. 2 and 3 do. hold a D; ctorate.in. their respective.discipline \Vi_th.~Xperience-extending111orc tl1an 7".)1ears in the isciplinc. _Petili~~ ner .No. I, who does !Jill hold a Doctorate has to his credit.M:R.C.V.S. which bas been recognised by the Government of lncfo as possessmg . post-giaduate qualifid1tion in Veteiinary qiid Ani.1nal SIOiences and teaching posts including the post of Directof of lVRl. and continu" to be' recognised as guide/teacher for post-graduate degree courses.

The subterfuge was to expo.se the petitio1; ers to 'a fresh selection test w.ith all its consequential m1certaini.ties and that Was the exact thiilg found bv Dr. oajendragadkar Co.mmitte. That is .why it can be said that like the true Bourbons '!CAR has learn\ noihing and. forgotten nothin.g/ The hard fact is that the petitioners were holding the. posts or' Professor when ti1c revised scale becarr.e effec!ive. 111 the letter d,1ted January 20, 197i sa11ctioning revised scale for the post. q.f Professor, there is not even. a whisper that the existing incumbent will tie denied. the benefit .. ·,,, fact, it is .well-known that the U:niversit"y_ Grants con11nission regularly rccorr; n1cr:ds-- revised stales for very p1an periodfor teaching-posts and the revision .takes ncte of. i111dequn:te scales sanctioned till t.he date" of re.vision.

The .onl);

justifiation DITered by the respondents for denying the petiti,;11ers . the benefit of the revisedscale is to be found in the counter-affidavit of Dr. M.S. Swaniinathan .• It is conteride.d that tlie newly created . p )St in the cadre of Profrssor is not the same as the thri existing

p)st ai:id that thre was 1narginal revisicin in the· quali_fitations for.' the. PJ.ts of Professor in the' revised -calc and that petitjonefs _\Vere . not discriminated because they• \Vere giVen aq .Opporfunity to contest

for the pnstsin ; he reised scale. Thc.ju; tifitation is tea fti1my to merit any serious conSiderntion. _n1or.e so in view of.the fact that it . .is . . . . . . - . diffi.:u 1t tJ ~-11v.i':lage a sitllation insuch _institutes, :undertakin:gadv3nc~

rosach in. Agriculture and Ani1m\l Husbandry where persons holding Doctorate qualification and enjoying the status of thi: post .cf Professor would be governed by two different scales even though the' d, uties, resp:J'nsihilities. and func.tions in varios $istcr. disciplines are idenli::ai.' Ii} such., i situatio~·Art,. 39(d), trut assist us 'in reaching a fair and_ just. concll1s-ion. laborat.ing the underlying i.r.!endmenf of Ari. 39(d); Chinnappa Rcddv, J.· in' Randhir Singh v:· Union of

India & Or.i."1 observed that construing Arts. 14 and 16 in the iighf of the Preamble and Art. 39(d), the Court was of the view that the principle 'equal pay for equal work' is deducible from those Articles and may be properly applied to , the ases of unequal scales of pay based on no classification or irrational classificaticn though those drawing the different scales of pay do identical work under the same employer. The case in hand is a . glaring example of discriminatory treatment accorded to old experienced and highly qualified hands with an evil eye and.· unequal hand and the liuarantce of equality in all its pervasive character must enable this Court to. remove discrimination and to restore fair play in action. No attempt was made to .sustain the scales of'pay for the. post of Professor en the doctrine of classification because the classification of existing incumbents as . being distinct and separate from newly recruited han.d with flilJlSY. change in. essential qualification would be wholly irraticnal and arbitrary. The case of the petitioners for teing put in the 'revised scale. of Rs,.) 100-1600 from the date on which newly created posts of Professors in sister disCiplines in lVRl and other i11stitutes were created and filled in in revised scale i.s unanswerable mid must' .be conceded.

When the matter was discussed threadbare Mr. Atdul Khcer, .learned counsel for the Union of India stated that all the petjtioners would be put in the revised scales from the. time the post .of Professor iri upgraded scale was filled-in in sister disciplines. Mr: Khader stated .that petitioners Nos. 2 and 3 are already .in the higher grade . and any attempted fresh seletion to fill-in those posts has been cancelled.

He further stated that the first petitioner .bad to be uncfficially put in the same scale on accoµnt.of the failure of the first petitioner to exercise his option to be in the employment of the !CAR and that as by now he has exercisecJ.., his option he will enjoy the same benefit.

Tlius Mr. Khader fairly conceded thafall the petitioners will be put . in the revised scale !rom the date fresh recuitment was made 'in sister

disciplines in IVRI in the revised -scale, and if the seniority was disturbed on account of the earlier approa.ch, the same would be rectified.

Ifthe petiiioners are entitled to the reised scale as hereinabcve ·. indicated, and should be put in the -same pursuant to the mandamus 'we propose to issue in this case, it is immaterial whether the advertisement' which was issued is cancelled or not. If the respondents still want to pursue the a.dvertisement, they. may do so without i.n any

(I) [1982] 1 s.c.c. 618.

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. . . manner affecting the position of the petitioners and the petitioners A nee.d not expose themselves to the vagaries of a fresh selection. It is therefore, not necessary for us .to cancel the advertisement for the reasons herein indicated .. This would dispose of W.P. No. s:S7 of 1975.

Re : R.P, No. 4 of 1977 in S.L.P. No. 2339/75.:

Dr. Y.P .. Gupta filed Writ Petitibn No. 276 of 1972 in the High Court of Delhi.. In this writ petition, he primarily raised two con- . tentions : (i) tliat the selection of respondent No .. 6 for the post of

snior Bio-chemist was illegal as he did not p0ssess essential qualifications, and (il) the removal of the petitioner from the m.embership of the Post-graduate Faculty was unjust and invalid. ·

ft was alleged that in December, 1970, ICAR advertised a post of Senior Bio-chemist in IARI in the scale of Rs. 1100-1400. The essential qualiiications were set out in the advertisement as under:

,,(i) . Doctorate in -Biochemistry or Organic Chemistry or D agricultural Chemistry.

(ii) JO years research experience in the field of Nutrition with particular reference. to quantity and quality of 'protein in food grajns as evidenced by publislied work .. . . '(iii) Ability to plan, organise and guide research .involving biochemical techniques as. applied to protein chemistry and radio-tracer studies."· ·

Aniongs.t others,' petitioners Dr. Y.P. Gupta, Dr. T.S. Raman and respondent No. 6 in the High Court Dr: S.L. Mehta applied

for the post. A Selection Committee was set up with Dr. J. Ganguly; F Professor. of Bioch.emistry as Chairman and Dr: P.K. Kymal a.nd Dr. , N.P. Datta as members. Intending candidates including petitioners Dr. Y.P. Gupta, Dr. T.S. Raman and respondent No. 6 Dr. S.L. Mehta were interviewed by the Selection .Committee. The Selection Committee found that none of the candidates interviewed , or conidered in absentia fulfils all the essential qualificaticno. laid G . down for the post and therefore, the Committee was unable to recommend any nanie at .that stage. The Committee further recommended that the post may be readvertised and essential qualificatipn No. 2 should be amplified by adding the clause 'JO years research experience in the field of protein Chemistry.' The. Selection Committee fJ further recommended that from amongst the candidates interviewed

. 228 SUPllilME COURT REPORTS [1984] i S •. C.R .. . ; . . . ..,_ and 'considered in absentia tlwse whose names were set out in the report be calledfor.fresh interview whiCh may be held afier the post is advertised. afresh with expanded essential qualification, This list includes the names of petitioners Dr. Y.r: Gupta and Dr. TS. Raman as also respondent-No. 6 Dr. S.L Mehta ..

A fresh Selection Corn-·

.· mittee \vas set up which included respondent No. 5 Dr: M.S. Naik

agafost whom numerous allegations of maia fides have bee11 ade, The i1ew Selection Comtnittee interviewed Dr.. Y.P. Gupta along with others .. Ultimately, the second Selection Committee recommended pr. S:L. Mehta for th.e post .which led to the' filing.of the petition inter a/ia 911 the grund that Dr. S.L. Mehta did not satisfy the minimum es.sential qualification. .

Another griev.ance in the petitio'n ; s that petitioner Dr. y, p, Gupta was a member of the facuJty', in the post-graduate school at IART from 1965 to May 1971 and he was illegally and arbitrar; lv removed.from the membersh; p of the Faculty. Jn the communication dated Juno 15, 1971 by the Assistant Registrar to Dr. M.S. Naik, Head 6f the Biochemistry Department, Ann. P-1 to the petition hi the . High O)urt, it is stated that the letter of Dr. Y.P. Gupta dated May

30, 1970 \vas considered by the Academic Council which una.nimously

esolved , that Dr. Gupta'. was not .interested in continuing as a member of the Faculty and hence the Council" reg1et to utilise. Pis service as :i member of the Faculty to. the post:graduate school any more.'' Thus actording to the "petitioner, he was removed from the membership of the Faculty wl1ilc accordi, ng lo the respondents by the letter dated May 30. 1970 Dr. Gupta submitted his resignation which was

accepted by the .Academic Council with regret:

The High Court rejeted the petition primarily on the ground ihat no writ petition lies against TARI, a ground no more available to the petitioner. On the merits, the High Court held that Dr. YP. . Gupta has failed to subs(antiatc the allegations ofmala fides'.made

against respondent .No. 4-DL M.S: Swaminathan and respondent

No. 5 Dr.· M.S. Naik. The High Court further held !.hat the Selection . Committee bad the power to relax the essential qtialificaticns and the vOl/y fact th.at respondent No. 6 Dr. S.L' Mehta was appointed on the recommendation of the Selection Committee it must have been done by necessary implication aftr. relaxing the essi.ntia! qualification and therefore, the appointment of respondent No. 6- Dr:

H ~- S.L. Mehta was valid.and imquestionab.Ie. With respect to the second gdeyance, the High Court' held. that Dr. Y.-P. Gupta' ceased to be a men1ber of the Faculty and that he was not removed from the member- '

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P. K. IYER v. U'JION (Desai, J.) . . 229 .

ship and it was not necessary .to bear. him because it was not.a case A of removal but ofcessation' of membership and thetefore no .relief can be granted to Dr. Gupta. •

Before' we proceed to examine the contentions raised by Dr.

Gupta on merits, we must dispose of .a preliminry objection raised on behalf of the respondents: It was submitted that not only the 'writ petition filed by Dr.· Gupta w&s dismissed by the High Court B on merits but S.L.P. 2339/75 against the decision of the-High court . was rejected by this Coµrt on July,-21, 197() after recording the statement of l\1r. Lokur, learned counsel who appeared. for !CAR as .also the Institute that .the Academic Council .w9uld consider the questl~11 of taking back the petitioner as.a member qf the Faculty. Thereafter, Dr. Gupia filed R:P. No. 79/76. which was also. rejected by this court on Oct. 21/, .1976. At the 'relevant time as the successive. review petitions were not barred, Dr. Gupta filed R.P. No. 4/77. T)lis review petition .was kept pending and was finally directed to. be heard with the Writ Petition No .. 587/75, by the orde1' of this Co.urt' in C.M.P. No. 17350/79 dated Decemb.er 19, 1979.. Preliminar} objection .is that no case is 'made out b} the petitioner for review .of th.c decision of the Court rejecting petitio~ for special leave jjjcd by the

petitioner. . The writ petition filed by Dr. Gupta in the High Court on a reference made by a Division Bench was heard by .a Bcnth of five Judges and the larger Bench .focussed its attenl'OJl on the maiii question whether the wiit jurisdiction can be invoked against ICAR and its affiliates .and i{was held that the .wtit. jurisdiction cannot be invoked. Once the High Court held that the writ juris<)iction. cannot be Invoked, it could 110t proceed to exami11e the contentions raised by Dr. Gupta on merits. The. moment th.e High Court held that it had no jurisdictiou to e.ntettain the writ petition,. it became functus 'officio and .therefore, its decision oil the .merits of the co.ntention is of no' consequence and at: ny rate could not conclude the matter against the petitioner.·. Now that it is held that the writ. petition is maintainable on the finding tha.t lCAR. and its affiliates are other .. authority within the maning of the 'expression in Art. 12 of the.

Constitution, justice deman"ds that the. Court must examine the contentions of Ik Gupta on merits. We. accordingly, overrule . the preli1ninary objection raised on behalf of responde.nts and p10cced to examiue the cont.erttions on merits by allowing the review petition No. 4of1977 and grant special.leave to appeal to' the petitioner .

. Both the contentions may be separately examined. •

Th~ first contentio.n is that respondent No .. 6 Dr. s.t. Mehta

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who was selected by the Selection Comittee for the post .of Senior Bio-chemist after the bizzare exercise undertaken to find a suita bk person to fill in the .post o'n the earlier occasion, did not fulfil Gue of the essentiai" qualifications for the post:· 1t was urged. that in order t.o help respondent No. 6 to get selected .essential qualification was doctored to suit his requirements and respondent No. _5 was nominated on the second Selection Committee. When the post was first arlver; . tised, one of the essential qualifications was '10 ears research

experience i_n the field of Nutrition with particular reforeuce to quantity and quality of protein in food grains s evidenced by pllblished work.' It is nofin dispute tliat Dr. Gupta, the present pet't'cner, did satisfy th'.s and other.essential qualificat; ons. The first _Selection CcmmittEe examined the suitability of seven . candidats . including petitioner Dr.. Gupta; Dr. T .. S Raman, petitioner in cognate pe\ition and respondent No. 6 Dr. S.L. Mehta. The Committee specifically recorded its finding that none of tl1c candidates. interviewed or considered in absentia including respondent No. 6,. selected at a later stage, fulfils all the essential qualifications laid down for the post. The Committee recommended that.the post be readvertised after amplifying the essen_tial qtialificaticin in the matter of experience namely '10 years research )OXperience in the field of Protein Chemistry'. The post was the post of Senior Biochemist. lniiially experience requlred was in the fieldof Nutrition with particular refere)lce to quantity and quality of protein in food grains as evidenced by published work wl1ilc . the amplified essential qualification was research experience in tlic field of protein Chemistry.

It is difficult lo eface the impression that the amplificatio11 was done keeping in view the. qualification which Dr . .S.L. Mehta had and event))en the question did arise whether. he satisfied the original or the amplified essential qualification. The.

Committee recommended that pursuant to fresh adve1tisement, ii

ould' ot be necessary for the petitioners Dr." Gupta, Dr. T.S. Raman and respondent"No. 6 Dr. S.L. Mehta to submit afresh application and they should be interviewed again with other candidates available on readvertisement of post. The Selection Committee was reconstituted by nominating respondent No. 5, M.S. Naik, Head, Division' of Biocbemistry, IARL All members or' the first Selection Committee were available. ]'lo explanation is offered what necessitated expanding the Committee by nominating Respondent No. 5 on the Selection Committee. And let it be recalled that the relations between petitioner Dr. Gllpta and respondent No. 5 were by that time considerably strained. It )s. therefore difficult to escape the conclusion that the purported .amplification of. essential qualification appears to be a . device to exclude .Dr. Gupta who fulfilled the first prescribc, d essential

.....

• J'. K. IYER v, UNION (Desai, J.) 231

qualificat on and oblige respondent No. 6 to fit into altered qualification.

Two errnrs are pointed out in connection with the proceedings of the second Selection Committee in which Dr. M.S. Naik participated, namely, that the proceedings were vitiated on account of the bias -of Dr. M.S. Naik and that the Committee failed to interview Dr. T.S. Ra marl and his case wet by default not on liccount of his fault but on account of inefficien.cy and inaction on the part of the administration responsible for intimating to Dr. Raman the date of interview.

 At the outset we must notice one development whiCh renders a detailed examination of the contentions raised by Dr. Gupta unnecessary. though we cannot refrain from expressing our distress about the recruitment .method adopted by the ICAR and its afliliats. This exercise, we are undertaking to satisfy ourselves. whether after the unravelling of despicable state of affairs in the internal administration of ICAR and its affiliate~ by Gajendragadkar

Co1nn1itee, has any i1npr.ove111ent becon1c noticeable ?

Dr. Gupta challenged the selection and. appointment of respondent No. 6 as Senior Bio-chemist. The post of Senior Bio-chemist" has since been abolished. Therefore, _setting aside _the selection of respondent No: 6 for the post of Senior Bio-cheist is .only of academic interest. However one aspect which we .cannot overlcok is that by this process of selection seriously questioned in this petitiop, Dr. S.L. Me\lta has scored a march over petitioner Dr. Gupta and his co-petitioner Dr. T.S. Raman in the matter of higher scale of pay:

The firsi question to which we must, t\lerefore address ourselves is whether there is any substance in the contention of Dr. Gupta . . . . that even applying the amplified essential qualification, r<spondent ·

No. 6 Dr. S.L. Mehta was not qualified for being selected for the post ? The finding recorded by the High Court in this connection is eloqµent to establish that Dr. S. L. Mehta did not fulfil either the original or the amplified .essential qualification, of pertaining to experience. Says .the High Court that the research experience .respondent No. 6 Dr .. S.L. hta started from October .1962 when he was preparing research thesis for M.Sc. The selection took place in February !972 with the result that the research experience of Dr. Mehta fell short of"IO years. This finding was not only not controverted but is unassailable. And we do not subscribe to the

. A

view .that the period spent in. preparing thesis for M.Sc . .:..Cmark. not . Ph.D .. counts towards required. expei:ience. 1t'. is well-settled tht experience to be of value and utility must be cquited after the educational qualification ,.i.s obtai11ed and not while acquirinR the. post' :graduate qualification:· ln 'the case.of Ph.D .. Deoree awarded on researc)l he situation may be different, But' preparing thesis after graduation for acquiring post, graduate CJ.egree would not count "· towards prescribed experience qqallfication.

Respondent ]'lo. 6 qualified for M.S.c: in .1964 and Ph.D. toward the end of 1966 in .soil science and Agricultura'l. L:hernistry under the guidance of Dr. ,.

N.B. Das a11d joined se1vice al JARl in July, l 969. These , facts are . uncontroverted and therefore,. the High 'Court ov,)ooked .\he fact that respondent No. 6 Dr. s.L. Mehta had research experience extending only over hardly a. period of 5 years. Further the High Court failed' to notice that respond.en\ No. 6 appeared ·at to carry on research in the line of Nuirition' or protein. Chemiury and therdore he. did not fulfil th.e qualificatiol) at all and in our opinion, he even could not have been. called for interview by the Selection Committee. Not onl.1 that. in .para' 10 of the writ petition i~ the H'igh Cou; t, it was speeificc\liy asserted that respondent 'N,;.' 6. Dr. Mehta did not satisfy the original or amplified essential qualification pertaining to expnknce . . because the post was under the project 011 the protein qalityof illets, ..

sorglrnm, wheat and either cereals concerned with studies on the nutritional quality of food :grains. whereas Dr. Mehta has never. done any work nor published any literature in. the Jine of nutrition nor was he ever basically trained in .this line. lilthe .. counter-affidavit fried on behalf of rnspondent Nos. ), and 4 that.is Director General atid Secretary to the Government oflndia, !CAR and Director General of !CAR, this averment was neither.· questione<l nor ccmli'overted

'----

nor .denied. Further the High Court upheld the slection and appoint~· ment of respondent: No: 6 Dr. Mehta hot.ding' that a5' the Selection Committee had power-to' relax the essential qualification, the appointmeht of br. Mehta was made after relaxing the essential qiialification.

We find it difficult to appreciate that the. High Court shmiid uphold . '""'

 an appoh1tment of a person, to suit whose r.equirement, the ess.ential qualification was amplified. by providing an irrelevant additional amplification and yet who failed to qualify for tlie same by resorting to the power of relaxation. And we are not satisfied that the second . Selection .Committee .had the pawer to relax' essential qualification pertaining to experience ..

In .this <tn.nection, it is .ad.vantageous to refer to the. counter-affidavi.t of respondent No. 4, the Director-. : General. of !CAR, whe.rein he stated tha.t firsi essential qualification pertaining to educational attainment was relaxable. He is silent as

• • ' .

... . \

P. K. IYER '" UNION (Desai., J.) 233

to the second essential qualification pertaining to experience. The

re.levant poriion may be extracted : A

"Doctorate in Bio-chemistry or Oganic Chemistry oi . Agdcultural Chemistry-relaxable to M.Sc. Degree or equivalent post-graduate qualifications in the case of capdidates . with exception.ally distinguished record of produtive B research." ·

It is not suggested that there was power. oT rel_axation with regard to second essential qualification. However, neither respondent. No. 6 nor respondent Nos. 2 and 4 ever asserted that but for power of relaxation claimed,. respondent No. 6 could ever be said to have satisfied the essential. qualificaiion pertaining lo experience. 'In. this connection, we may'refer w a counter-affidavit on behalf of respondents . Nos. 3 .and 5 to 7 which included respondent No." 6. the party con'

cerned. In the. counter-affidavit, there is an sphinx like silence with ' regard to the averm_e,; ts madein-para JO that respondent No. 6 Dr..

Mehta did not satisfy tlie essential q1ialification pertaining to experience. . Sub si/entio _an ad1nissio1i can. be spelt on behalf of respondent No ... 6

t!at he did not have requisite ese11tial quali.ficatiu1~ a.s to. experien1.:e .. . Therefore, the conclusion is inescapable that respo.ndent' No. 6 Dr.

Mehta did not satisfy the essential qualificaticn pertainirg to exViience even after the !CAR and. its affiliates and respondent No.' 4 amplified . the essential qualifications. And 'we could not trace the source of ·

poer if any to relax essential qualilkalio1i'.as to experience. There- .fore; oi1 the face of it the slection of respondent No. 6 for the post of Senior Biochemist is utterly unsustainable. More so because there were others who fulfill\:d all escntial qua!lflcatipn and one is .left to speculate the reasons which weighed with the Selection Coin- . mittee 'to reject them and .to .select a person who did riot fulfil. the essential qualification foi such a: post as Sei1io1' Biochemist, claiming non-existent pow'?r to relax the , qualification'.·

Jn this co.ntext one more submission may be disposed of. It was said thatlhe Committee consisted of experts and they were highly qualified persons who woµld be able to evaluate and assess the relative merits of each of the candidate °before it and the. Court is least com- . potent lo do so and therefore

0 it-would bebnwise to substitute experts' decjsion by Courts' de(isiOn. In .this connectioi1,. re\jance' Was placed on- Dr. M.C. Gupta&. Ors., v. Dr. A run Kumar Gupta & Ors.''' in

which this _Court held as under '

(1) [1979] 2 s.c.c .. 339

".When selection is made by the Commission aided a.nd advised by experts having technical experience and. high academic qualifications in the specialist field, probing teaching/research experience in technical. subjects, the Coifris ·.should be slow to interfere with the opinion expressed by experts unless there are allegations of mala tides against them. It would normally be prudent and safe for the courts to ]eave the decision of academic. matters to expeits who are more familiar with the problems they face than the • courts genera!ly. can be. Undoubtedly, even such a bod& if it were to contravene rules and regulations binding upon it. the court in excerise of exfraordinary jurisdiction to enforce rule of law, may _interfere in awrit pe.tition under Art. 226."

' It was urged that once it is conceded that as the power of selection and appointment vests in the !CAR, the Court should not usurp that power merely because it-would have .chosen a different' person ·• as better qualified (See State of Biharv; Dr. Asis Kumar Mukherjee1" Undoubiedly, the Court must look with respect upon the performance of duties by experts in the respective fields as bas been sa.id in Dr. M.C.

Gupta's .case .. However, the task of ushering a society based on rule of la.t'' is entrusted to. this Court and it cannot abdicate its functions.

Once it is lnost satisfiactorily established that the Selection Committee . . did not have the power to relax essential qualification pertaining to experience, the entire process of selection of the 6th respondent was in contraven-tio.n of t)le established norms prescribed byadver tisement and power of the, Selection Committee and procedure of fair and just selection and equality in the matter of pub lice mployment and to rectify resultant injustice and establ_ish constitutional , value this C.urt must interfere. Selection bf respondent No. 6 is contrary to rules and orders.and ni violation of prescribed norms of qualification. He was ineliibleg for the post• when selected. His selection and appointment

would b~ required to be quashed and set aside.

The present position however is that the post of Senior. Biochemist has been abolished. Undoubtedly, respondent No.· 6 by undeserved benefit of improper selection has scored a march over his co1leagues in the ma tier of pay scales to hich be would not be .entitled.

Petitioner Dr. Gupta was put in the scale of Rs. JJ00-1600 in 1978 while respondent No. 6.Dr. Mehta was.put in that scale in. 1980 that .is two years after the petitioner. By the illegal selection respondent . . .

(!) [1975) 2 S.C.R 894

" I

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P. K. IYER v. UNfoN (Desai. J.) 235

No. 6 has reached the scale of Rs. 1~00-2250 while Dr. Gupta is in the •cale of Rs. 1500-2000. Respondent No. 6 Dr. Mehta is enjoying this utterly undeserved \Jenefit consequent. upon .his unsustainable selection as Senior Biochemist:

Now that the post of Senior Biochemist is abolis)fed, how do we redress the wrong. At the hearil)g of this petition, it was suggested to the respondents .to put both Dr. Gupta and Dr. Raman .whose case. will be presently examined in t\ie scale of Rs 1800-2250 from the date respondent No. 6 Dr. Mehta has. been elevated to that scale, That is the only way for securing justice to Dr .. Gupta andhe is entitled to it. ·

The second grievance of Dr. Gupta is that be was illegally removed from the membership of the Post-graduate Faculty by the . Academic Council. Few relevanf facts in this connection are that Dr.

G!ipta felt that he was .unjustly treated by bis s.uperiors by not allocating students for Ph.D. to him and by not facilitating post-graduate teaching. There is a .fong drawn-out correspondence in this behalf which we consider unnecessary to refor to save and except the letter dated May 30; 1970 which has been treated by the Academic Council as a letter of resignation of Dr. Gupta from the membership of the _Faculty. By this letter pettioner Dr. Gupta informed. the Academic Council that even though he has been repeatedly assurd that his grievance would be theroughly eamined and full justice would be.done

to him for the discriminalvn and victimisation to which he has been subjected in the m.atter of allotment of students .of 1968 and 1969 batches, nothing has been done in this behalf. He further states that he has been all along patiently waiting for the redressal of his grievance, yet justice has not been done to him. He then states as".

under: ·

"As such, after showing so much patience in the matter, I am sorry to decide that fshould resign from the membership of the Faculty in protest against such a treatment and aga\nst the disciiniination and victimization shown to me by the Head of the Division .in the allotment of students of 1968 and 1969 batches and departmental candidates."

This letter was .placed before the meeting of the Academic Council convened on May 3, 19nchaired by respondent No. 4. Letter dated May 30, 1970 of the petitioner was placed on the agenda at .

Item No. 17 .. In this connection, the Academic Council resolved asunder:

, D

"Yur Jette; was c01sidered by the Council at.its meeting held on "3rd May, 1971 when the Council came to the unani.mous conclirnion that youyiere.noUnterestcd in ontinuing as Faculty Member and hence the Council regrets tq utilize your serices as a Faculty Member of the P.G. Schoo.I any ·more."-·

The callous and heartless attitude of th.e Academic .Council is shocking .. lt adds insult to injury .. Dr. _Gupta has been the victim Of unfair treatment because he raised a voice of dissent against certain c.laims made by the high-up in ICAR in the field of Research. Avoiding

going .into t_he. details of it, this. resu.lted in Dr. Gupta. being denied the allocation Of students. 'He did not act in a p1'ccipi_tatc manner .. H.e went on writing Jeiter after letter even .including to respondent No. 4 b.e.seeching him to look into the matter and to ren<\er justice to him: When everythirtg fell on deaf ears, out of exasperation be wrote letter dated May 30, 1970 in.which he stated that the only honourable e.ourse left

0 open io him was to resign. rattier than suffer. The Council siezed upon this opportunity to .gel rid of Dr. Gupta: In this connection, it is worthwhile to point. out paragraph 11.l in Chapter .

Xl of the. Gajendragadkar Committee's report wherein the maj.or

complints regarding working conditions in the Divisions were listed as under ; . .

 • "(i) The Head of the Division does not give Jacitities for work. He favors those who ""l'k for l)im .

. (ii) there is no academic atmosphere as there is no free_ dis-.

 cµssioJ\ on.research projects and _res.ults obtained:

(iii) "Senior Scientists insert their names in research papers even thol!gh they do.not do the acfoal work.

(iv) Purchase of chei.n"icals, glassware _etc. take iuordinate delay.

(v) .Scientists are not alJowed to. use certain equipments

which are available in the Division or in 'the °Institute.

For. e_xample,, the equipments available in the Division ' of Biochemistry. of IARJ. ate no.t shared by all the colleagues of the Division.. The Nuclear .Research Laboratdry has several .equipments which scientists of other Divisions normally_ cannpt use." B . .

After.listing these complaints, the Committee gave its cornidered opinio_n as under :

'>-.

"-)

,_,_ ( -

P. K. IYER v. UJ'l!ON (Desai, J.) 237

11.2 We feel that most of these complaints art genuin<' ai1d they should k remedied. The working conditions for scientists should be made attractive so that a. scientists would be encouraged to engage himself in research rather than engge himself in. unacademic aCtivities. So the conditions in a Division should be set right first." (underliningours)

The Committee proceeded to make numerous recommendaticm . to ameliorate. the situation. Jn. this co.ntext we would also like to refer to paragraph I 3 at page l 52 of the Report which reads as under: . .

"As more instances of allegatibns of uilscientiJ, ic attitudes, behaviour. and practices in IARI, we cite the following.· These com(; from the submissions made by three .scientists o.f the Bio-chemistry Division of JARJ, Dr. T.S. Rarran chaUen-ges the findings in the.Ph.D .. thesis of Dr. LS. Mehta, . . . a Bipchemist in, the Nuclear Resean:h Laboratory. Dr.

Raman categorically asserts that certain data ccntain<d in Dr. Meht; r's thesis "could not hr.ve been obtained by methcds he has. claimed to have. been used." Dr. Y.P. Gupta who appArently has himself worked. on the lysine content of different varities of wheat, states that in the half-yearly report for period ending October, 1968,.he had.reported the lysine content of Sonora-64 to be 3.26.%,- but that the Heed ofthe Division deli.berately changed it to 2.26 % so that the Sharabati . Sonora might appear in a more favourable light. Be seriously

disputes the data ori the protein and lysine-content of Sharabati Sonora published .by. Dr. Swaminath_an in - the November 1967 issue of the journal ;, Focd Industries'' .. . Dr. K.G. Sikka states that four varities. of Arhar (cajanus) have been recently released which h'e finds contain certain. toxk substance causing blindness a.mong rats. Within the short time available to us, it has not been possible for us to examine these allegations. We do not also think that it . would be a fruitful course for 'us to pursue .. It is obvious that these are very serious allegatons: Wheiher thay are substantiat.ed a careful .exairtaiion, the fact remains thnt there are many junior scientists in IARI who, rightly or wrongly, feel 'that they are not free to publish a. scientific'. filiding because it doesnot suit somebody higher. up or t.hat .in fact unscientific data are being. , passtd on to the hrgher, athorities in_ retufn Of favOurs and promotiOns.

.F .

G .

SUPREME COUJ\T. REPORTS [I 984] 2 s.c.R:.

The existence of this feeling is most regretable because it creates the conditions for breeding of unscientific behaviour and practices _if they do not already .exist. Mere refutation ofthe allegations will not iherefore do."

. . . br. Gupta's complaint .was then noted and that is the complaint which awaits redressal. H clearly transpires that Dr. Gupta was hounded out ofthe Faculty_ membership and now the respondents try to hide this inconvenient fact by treating the cry oCagony in the letter dated May 30, 1970 as letter of resignation. Apart from being harsh, it is an unethical attitude on .the part of the !CAR. However, at this s!age, we would record a statetment made by_ Mr. Lokur, learned counsel appearing for ICAR and its affiliates before this Court on Ju.y 21, 1976 at the hearing of S.L.P. No. 2339/75preferred by petitioner. Dr. Gupta whic11' reads as under:

'.'Mr. Lokur states that the respondent council would . . consider the question of taking back thepetitioner as a member of the Faci1lty."

After recording. this statement the special leave pet1llcn was rejected. It was hoped that the respondents would act to honour the statement of their learned counsel. Now that the matter is being disposed of we direct the council to carry out. its statement made before this Court within three months from the date from. today. .

Re: R.P. Nq.- 80/76 in S.L.P. 702/76 : . br. T.S. Raman filed the writ petition in the Delhi High Court challenging the selection 7 and appointmeni of respondent No._ 6 as Senior Bio.chemist en aHthe . grofmds which were utged by Dr. Y.P. Gupfa in his writ petitcn.

F There is also an additional point in his favour in ihat even though the , first Selection Committee constituted to select' a Senior Biochemist -1

>. had directed that the second Selection Committee shou'd interview " -Dr. T.S. Raman along with other candidates, no intimation was "nt

to him about the date and time of the interview and he did not . have the benefit of the interview by the second Selection Committee which recommended respondent No. 6 Dr. Mehta for the. post of Senior Biochemist.· Dr. T.S. Raman questicr.<d th cc'rrcclr"' Hnd validity .of the selection of Dr. S.L. Mehfa; respondent No. 6 in Special Leave Petition 702/76 whch was heard and disposed of along with the . writ petition of Dr. Gupta and met with the same fate. Dr. Raman preferred S.L.P. No. 702/76 which was dismis_sed by this Ccurt en . August' 30,. 1976. Thereafter, he filed Review Petition No~ 80/76

' i

p, K. IYER~- UNION (Desai, J.) 239 • . which was directed to be heard in this group of petitions. The reasons

which found favour with us for reviewing the decision of this Court dismissing the S.L.P. No. 2339/75 preferred by Dr. Gupta and admitting it and disposing it on merits would mutatis mutandi.1' apply to the review petition of Dr. T.S. Raman and we accordingly review the decision rejecting his special leave petition and grant special leave to , appeal and procetd to dispose of the same on merits .

Ordillarily Dr. Ramari should get the sari1e relief which Dr.

Gupta is held entitled to, but certain facts were brought to cur notice which necessitate a consideraHon of Dr.

Raman's case slightly differently. Before we prcicee.d to examine Dr. Raman's case, it may .be noted that the High Court found fault with Dr. Rman in not informing the concerned authority about the change in his address and therefore, if Dr. Raman did not receivethe intimaticn for inter' view, he should thank himself. This approacq dces not ccmmen(, I to us. Dr .. Raman was sti!J in the employment of the.Institute at the time when the Secod . Selection Committee decided to interview candidates and in .view of ihe findings of the first Select[on Cvmmitt<; e,

Dr. Raman was entfrled s a matter of right to be called for interview.

The High Court observed that Dr. Raman neither applied for the post nor appeared for the interview before the second Se!ecticn Ccmmittce: This is begging the issue became the High Ccurt wl1olly overlooked the prcceedings of the first Selection Committee in which it was decided that without any fresh applicaticn from Dr. Raman, he would be considered to be a candidate before the second Selection Committee arid would be <:ailed for interview. There is a further co1ifession in the observation of the High Court when it states that Dr. Gupta and .Dr. Raman were both at ihe relevant' time working in the _Biochemistry Department of the Institute and that Dr. Gupta appeared for the interview before the Second. Selection Committee while Dr. Ramn failed to do so and he cannot make a grievance about his own lapse. If Dr. Raman was at the relevant time a!fachd .to the Institute and was working with the Institute, we see no justi- .

fication for the ministerial side of the Institute not informing Dr.

R 1man to a'ppear for interview. The lapse was on the part of the Selection Committee and the same cani10t be wished away. The . High Court was clearlv in error in observing that either Dr, Raman was not hopefui of getting the job. ot he had some other reasons fer not applying for the same and therefore his grievance cannot be

entertiried. This is clcarlv contrary to record: He qad applied e.arlier and was entitled to be called for interview as noted in the proceedings. "It was obligatorv upcn the fcccrd Sekcticn Ccrrmittee

c •

• c

to inform Dr. Ra; nan ti:l appear. fo( .the interview and aaequate steps sh.ould have 'qoe1naken to give. the intimation because he was attached . to the Tnstitute and was in active. service of the Tnstitute and intimation. to tiim would not requirn anv herculean effort on the part of th~ Committee.· If'the matter wece Id rest here, we. would have unhesta- . tingly given the same relif which Dr. G'upta is held entitled tc;, but certain additional .facts were put on re.cord which necessitate a different, np.proach. ··

 lt maf he recalled that since the re.vision. of tl1e icale attached to •fhe post of Professo; tci Rs, 1100-1600, further promotion was to the ·.scale of Rs. 1500-2000 and the next promotional stage was R>. 1800-2250. It no\v transpires that Dr~ Raman was made a member of 'f\gricu!tural Resea1'.ch Science .(ARS) with effect from o:ctober 2, 1975 and he was put in .the sba1e .S-2 Rs. 1100-1600 from the same date .. Rule 19 of the Agricultural Research Service Rules pi'ovided

for promJtion. from one grade to next higher g1ade on the basis of assessrfient of performance by Agrirnltural Scientific Recruitment Board (ASRB).. The screening for the .purpose of. promotion to higher gr:ide is pcri:O.dically undeFtake11'every. year as far.as practicable

sJincwhre in Janu~1ry or so_on thGrafter. ·sucl11 a Screening was' . undertaken on October 26, 1977 by the Asessment Committee appoiiitta bv the Chairman of ASRB. The period under. Jssessment was upto nd in2iusiw of December 31, 1915.

Unfortunately, or. Rama~ w.ts not recommended by the Committee for 'pro1110tion to S-3 grade i.e, .!ls: 1500,2000; but instead of promotion .lo the higl)ergrado, the Committee recolirn1ended that two .advance incrcme.nts te granted to Dr. Raman which recommendation was ca.rried out with effect from July I, 1976: Against the assessment by the Assessment Com- . mitteo, Dr. Roman made representation e1aiming that , he was eligible for promotion to , S,3 .gra.de. This represcntaiirn ""'s .rejcc1crl. ·.by the Director General concurring with the sssessir.cnt inrck by the

Asscssmnf Cotnrnitti::e which. did 1ot find .Dr. Ran1an t for p'ron10~ tion to S-3 grad~: In 197.8 or. Ranian was requstcd to. gi:; e supplementary inforation about. the research \vork und.ertcken by him for assessment for promotion.1o S-3 grade.

In. the. meeting of the Assessment Cori1mittee held on. May 28, 1980,. the i.nformaticn supplied .bY Dr. Raman wasJ1eldt~ be insufficient and this. can be cul!ed out from the observation'. of th~ Commit.tee that Dr. Ramai1 "co.uld ri0t be a.ssessed for want. of material and CCRs for alI the years'. The case .of Dr. Ram.an for promotion to S-3 ·.grade again came up before the Assessment Committee which met on April. 22 .. 1982 and the Committee noted its' deision con'V(ycd by 'the woids

•·.

'II .1

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P. K. IYER v. UNION (Desai, 1.) 241

'no change'. Now these assessments are not questioned in the writ petition filed by Dr. Raman and these are later developments and therefore, it would be difficult to give Dr. Raman any benefit at this stage wholly ignoring the later developments

The learned counsel for the ICAR after succintly pointing out the fact• hereinbefore mentioned, submitted that it is not possible to accord same treatment to Dr. Raman on par with Dr. Gupta wholly ignoring later developments. He however frankly and fairly stated that if the Court directs, the InstitUte has no objection to appointing afresh Committee for making a fresh assessment for ascertaining the suitability of.Dr. Raman for promotion to S-3 grade on the basis of the material regarding work done :ind achievements made by h; m for the period commencing from.becember 31, 1976 npto the period he bas been assessed or uptil now. It was further submitted that if the special Assessment Committee which may be set up to examine the case of Dr. Raman recommends his promotion to S) grade, the same can be given to him with effect from Jst of July of the year following the year upto which he submits his wofk done and other achievements. Dr. Raman is in the.grade of Rs. I 100-1600 since 1975.

A period of 8 years has rolled by. He is undoubtedly a highly qualified person. It is equally true that he bas been asses'sed thrice and found wanting for promotion to the higher grade. However, we appreciate the fair attitude adopted by the learned counsel in this behalf and accordingly direct that the Institute shall set up a special AsscSfment

Committee to assess the suitability of Dr. Raman for prcmotion to S-3 grade by examining bis work from 1976 till today. This may be done within a period of three months from today.

Except for what we have recommended in the foregoing paragraph, it is not possible to give Dr. Raman any other relief which Dr. Raman would have been held entitled on the ground that it was an error of the second Selection Committee not to have interviewed him or not to have considered .his case in absentia as directed b'i the. first se.lection Committee. Though the lapse was on the part of the respondents, the resultant situatio'n has become irremediable and irreversible. Therefore, with the observations and directions made in the foregoing paragraph, the appeal arising from the special leave petition of Dr. Raman fails and is dismissed.

Re: C.A. No. 1043/81 : Appellant Om Prakash Khauduri after obtainirlg post-graduate degree in the discipline 'Opcratirnal H Research' iri 1973-74 joined the post of Senior Computer in Indian

Agricultiiral Statistics Institute, an affiliate of ICAR on December 4,

1975. The Agricultural Scientists Recruitment Board ('ASRB' for short) has been constituted by the ICAR with the approval of the Government of India as a recruiting agency for the various posts in Agricultural Research Service (ARS' for short). ASRB issued an advertisement intimating that it would hold competitive public 'examination in 1978 to recruit scientists to be appointed under various disciplines of 'ARS'. For the information of the intending candidates, ASRB made available the rules framed by the JCAR on August 19, 1977 ('1977 Rules' for short) setting out the terms and conditions for admission to the competitive examination and the criteria fer selection of successful candidates etc. The competitive examination was to consist of written tesfhaving '600 marks followed by a viva

.,,

voce test carrying 100. marks. The final selection was to be done according to the merit list, which would be arranged by the ASRB in the order of 1mrit in each category as disclosed by the aggregate

m>rks f\nally awarded to each candidate as per Rule 14 of 1977 Rules.

In response to the advertisement, petitioner applied on Oct. 26, 1977 for being admitted to the examination and his application was accepted and potitioner appeared in the written test.

He secured 364 marks out of 600 in the written te'st which qualified him for being called

[or viva voce test. 'Tn all 20 candidates inciuding the petitioner were selected for viva voce test. After the viva voce test, the ASRB declared the names of 13 candidates as successful and finally selected them for ARS in the discipline 'Agricultural Statistics'. The petitioner was not am.ong the successful candidates. In fact, nearly 21 vacancies were left unfilled by the ASRB. Petitioner contends that ASRB contravened Rules 13 and -14 by prescribing minimum marks for qualifying at viva voce test at 40 out of 100 and those who did not secure 40 marks, even if on aggregate of the marks were eligible for being included in the merit list, such .candidates were wrongly excluded from the merit list. Petitioner further conteds that the merit list prepared in contravention of Rules 13 and 14 and the resultant '1 sefoetion based on such illegal and invalid merit list is liable to be q uashcd and a mandamus be issued directing the respondents to prepare a fresh merit list in accorda11ce with Rules 13 and 14. The p-; titioner made variou~ representations and he was satif:ficd that the ASRB had accepted the same method cif preparir g the .rr, erit list as the UPSC which followed the. method of arranging the merit

list according to the aggregate marks obtained at the writtrn test and viva vocc test and if the merit list was prepared according to I that method, he was eligible for being selected for one'Of the vacancies in ARS. Petitioner continued his 'search for justice and ultimately'

P. IC. IYER v. UNION (Desai, J.) 243

he filed a Writ Petition No. 553/80 in the High Court of Delhi for the above mentioned reliefs. A Division Bench of the High Court held that the law as it then stood was clear that a Society registered under the Societies Registration Act was not other authority within meaning of the expression under Art. 12 and that as ICAR is a society, writ jurisdiction cannot be invoked against it and on this short ground writ petition filed by the petitioner was rejected in limine. Hence this appeal by special leave.

The narrow question that falJs to be determined in this appeal is whether under the relevant rules ASRB can prescribe minimum qualifying marks which a candidate µrnst obtain at the viva voce test before his name can be included in the merit list on the basis of aggregate marks obtained by him as required by Rule 14 of the 1977 Rules? . .

ASRB has been set up as a separate and independent agency for recruiting personnel for IASRT, an affiliate of !CAR. A competitive examination was held in 1978 to recruit scientists to be appointed under various disciplines of ARS including the discipline 'Agriculture Scientists'. There were 34 vacancies in this discipline.

Selection was to be made by competitive examination comprising written test carrying 600 marks in the aggregate and viva voce test carrying JOO marks. The written test is held first and those who qualify in the written test alone are eligible to be called for viva vcce

est. It is alleged and not controverted that

ASRB prescribed that anyone to be eligible for being admitted in the merit list on the basis of aggregate marks should also have the additional qualification of atleast obtaining 40 marks in the viva voce test. -It is seriously '\-- contended that this additional qualification <lo!'s not have the authority

f of law, and that it was arbitrarily devised without any rationale behind it.

The relevant rules are Rules 13 and 14 of the 1977 Rules, which may be extracted :

.B.

"13. Candidates who obtain such minimum marks in the G the written examination as may be fixed by the Board in their discretion shall be summoned by them for viva voce.

14.

After the examination, the candidates will be arranged H by the Board in the order of merit in each category

(professional subject-wise) as disclosed by the aggregate marks finally awarded to such candidate and such candidates as are found by the Board to be qualified by the examination shail be recommended for appointment upto the number of unreserved vacancies decided to be fiiled on the result of the examination."

Mr. Ramchandran, learned counsel for the petitioner contrndcd that Rule l3 does not. envisage obtaining of minimum marks at the ~, viva voce test even tho.ugh it contemplates obtaining minimum marks at the written test so as to be eligible for being called for viva voce test. It was.further urged that_Rule 14 specified the manner in which merit list is to be arranged. R\1le 14 provides that after both written and viva voce tests are held, the candidates will be arranged by the Board in the order of merit in each category (Professional subjectwiee) as disclosed by the aggregate I]1arks finally awarded to each can- ,._ didate and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination. On a combined reading of Rules 13 and 14, two things emerge. It is open to the Board to prescribe minimum marks which the candidates must obtain at the written test before becoming eligible for viv~ . voce test. After the candidate obtains ';..._, minimum marks or more al \he written test and he becomes eligible for being called for viva voce test, hehas to appear at the viva voce test.

Neither Rule 13 nor Rule 14 nor any other rule enables thy ASRB to prescribe minimum qualifying marks to be obtained by the . - candidate at the viva voce test. On the contrary, the language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum -1

marks, he is eligible for being called for viva voce test and the final l . merit list would be drawn up according to the aggergate of marks obtained by the candidate in written test 'plus viva voce examinatiou.

The additional qualification which ASRB prescribed to itself namely, that the candidate must have a further qualification of obtaining mil).imum marks in the viva voce test does not find place in Rules 13 and 14, itamounts virtua\1~ to a modification of the Rules. By necessary inference, there was no such power in the ASRB to add ).. to the required qualifications. If such power is claimed, it" has to be explicit and cannot be .read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. It howe¥er does not appear in the facts of the case before us that because of an allocation of JOO marks for

y '

p. K. IYER v. UNION (Desai, J.) . 245

"iva voce test, the result has been unduly affected.

We say so for want of adequate material on the record. In this background we are not inclined to hold that 100 marks for viva voce test was unduly high compared to 600 marks allocated for the written. test. But the ASRB in prescribing minimum 40 marks for being qualified for viva

 voce test contravened Rule 14 inasmuch as there was no such power in the ASRB to prescribe this additional qualification, and this prescription of an impermissible additional qualification has'a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidate at written test plus viva voce test. Once an additional qualification of cbtaining minimum marks at the viva voce test iSadhered to, a candidate who may figure high-up in the merit list was 'likely to be rejected cin the ground that he has not obtained minimum qualifying marks at viva Voce test. To illustrate, a candidate who has obtain<d 400 marks at the written test and obtained 38 marks, at the viva voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the g'round that he has not obtained qualifying marks at viva voce test. This was impermissible and contrary to Rnles .and the merit list prepared in contravention of the Rules cannot be sustained .

• It may at this stage be pointed out that the Union Public Service Commission has framed its rules relating to competitive examination held by it in 1978 to recruit personnel to Indian Economic Service and the Indian Statisical Service. Rule 12 and 13 are relevant for this purpose. Briefly, it may be statd that rule 12 authorises the Commission to prescribe minimum qualifying marks for the written examination to be fixed by the Commission at its discretion. It further appears that those. who obtain the minimu~ qualifying

marks will be eligible for being called for viva voee test. Rule 13 F provides that after the examination i.e. both the written test aµd the viva voce test, the candidates will be arranged by the Commission in the order of merit as disclosed by the aggregate marks finally awarded to each candidate and in that order so many candidates as are found by the Commission to be qualified by the examination shall be recommended for appointment upto the number of unreserved G vacanc'es decided to be filled on the. result of the examination. There is a proviso to this rule which is imm•terial. It appears that when the petitioner drew attention of the ICAR that in prescribing the additional qualification of minimum. marks to be obtained by the candidates at the viva' voce test and not preparing the merit list accor-' H ding to the aggregate of marks by excludirtg those candidates who

ha<l not obtained minimum qualifying marks at the viva voce test! it contravened Rules 13 and 14 and more particularly Rule .I 4. the ICAR referred the matter to UPSC and enquired about the procedure followed by it. There is an admission in the counter-affidavit of Mrs. Rathi Vinay Jha. Secretary, ICAR and Deputv Secretary, Government of India, Department of Agricultural . Research and Education, Ministry of .Agriculture and Rural Reconstruction that after the UPSC intimated its procedure: the matter was placed before the Committee of ARS at its meeting held on July 11, 1979. Subsequently, the President, ICAR approved the procedure followed by the UPSC and recommended by the Committee of ARS, and the revised procedure was adopted for the examination 'held in January,· 1981. The re, ised procedure eliminates obtaining of minimum quali(ying maiks at viva voce test. May be that the ICAR has corrected itself but what about the da_mage done to the petitioner and those similarly situated.

It is not possible at this late stage to reject the entire selection on the ground that the ASRB committed a serious legal error in prescribing minimum qualifying marks at the viva voce test and drawing up merit list on this impermissible method.

It would be equally improper to disturb the selection of those who had been selected and appointed way back in 1978. Even though -it is true that a serious legal error has been committed in drawing up the merit list, at this late stage, it would be unwise to reject the entire selection, disturbing those who are a'lready selected and may have put in service of not less than 5 years. But it is crystal clear that 21 _vacancies were kept unfilled. It is not made clear whether the petitioner has been selected at apy later selection. If he is selected at the later selection, nothing further is required to be done: But if he is not selected, the ASRB may draw the merit list in respect of remaining 21 unlilkd vacancies from amongst •those who were called for viva voce test and who were not selected because some of them like petitioner did not obtained. minimqm qualifving marks at viva voce test. The merit list may be drawn in respect of those who though called for viva voce did not qualify for being put in the merit, ignoring the concept of minimum qualifying marks a merit list in respect of them be drawn up on the basis of aggregate marks. If there is a vacancy, and if the petitioner comes within the zone of selection on the aggregate of marks obtained by him, his case shall be considered for appointment prospectively, and not retrospectively. This is the only relief which we are inclined to grant to the petitioner.

' '

p, K. IYER v .. UNION (Desai, J.) 247

That is the end of the journey. It is better to draw-up here A the directions in respect of each of the petitioner.

In Writ Petition No. 587/75, the !CAR is directed on their. concession and by a mandamus of this Court to put the three petitioners in the revised scale of Rs. 1100-1600 sanctioned for the post of Profossor effective from the day. when others selected as P1 ofrssors. in sister B disciplines were awarded the revised scale of Rs. 1100-1600.

In Special Leave Petition No. 2339/75, the !CAR is directed bv a mandamus of this Court to a ward to Dr. Y. P. Gupta the sak ' of Rs. 1800-2250 from the date the same was given to respondent No. 6 Dr. S.L. Mehta. The arrears payable pursuant to the direction shall be paid within 3 months from today.

Further the !CAR is directed to cam out the statement made by its learned counsol Mr. Lokur of taking back Dr. Y.P. Gupta as a member of the Faculty of post-graduate school of !ARI within a poricld or 3 months from .today.

fn S.L.P. No. 702/76, it is directed on the concession of the learned counsel for the !CAR that a special Assessment Committee may be set up to examine the case of Dr. T.S. Raman for promotion to S-3 grade' \Vithin a per; od of 3 months.• Dr. T:s. Ra1nan is not entitled to any further relief in his special leave petition.

Jn C.A. 1043/81, the ICAR and ASRB arc directed to prepare the 1nerit list in respect of those candidates who were called for viva voce test, but \vere 11ot included in the n1crit list on the aggregate of m1rks obtained by them as directed hercjn and if there is a vacancv and the appellant/petitione;. comes within the zone of selection h~ shall be appointed to one such vacancy.

The appointn1cnt would be prospoctive and would be 'effective from the date of the appointment but this is subject to the condition that if the appellant/petitioner is already selected at a later selectic•n, nothing inore is required to be done.

We order accordingly. The respondent shall pny the costs of the petitioners in each petition.

N.V.K.

Appeals & Petitions allowed.