Punjab-Haryana High Court
Dr. Sudha Suri, Professor & Head Of ... vs Union Of India (Uoi) And Ors. on 22 November, 2001
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. The Post Graduate Institute of Medical Education and Research, Chandigarh is a hospital and educational institute of national importance. The appointment of Mr. Onkar Nath Nagi, Professor and Head of Department of Orthopaedic Surgery, to the post of Dean of this premier institute, is questioned in this writ petition under Articles 226/227 of the Constitution of India. The petitioner herself is working as a professor in another department of Radiology in the same institute. Her name was considered by the recommending as well as appointing authority alongwith four other professors and Head of Departments of their respective specialities.
2. The principal grounds of challenge by the petitioner to this pivotal post of Dean of the institute are:-
(1) No reasons/basis have been recorded either by the recommending or even the selecting authority for over-looking the claim of the petitioner and other senior eligible doctors working in the Institute.
(2) No criteria, much less a valid and proper criteria, was formulated by the authorities for adjudging the comparative merit of the eligible persons.
(3) The Governing Body fell in error of law in appointing respondent No. 4 as dean in absence of a recommendation of the Director in his favour.
(4) The Governing Body as well as the Recommending Authorities failed to formulate any opinion on record on the basis of seniority and suitability white keeping other factors into mind, as postulated under the rules/ regulations. This vitiates the entire selection process.
3. Learned counsel for the respondents strenuously opposed the above contentions and contended:-
(a) That the petitioner belong neither senior most professor of the Institute not she is recommendee of the Director, as such she has no locus-standi to file this petition or claim any relief therein.
(b) The post of Dean being a selection post, merit alone was the criteria and as such the appointment of respondent No. 4 is not open to judicial scrutiny.
(c) The authorities concerned were/are not required to state any reasons or formulate a criteria for ignoring/not selecting other eligible persons.
(d) The governing body is not bound by the recommendation of the Director. It is competent to make appointments de hors the recommendations of the Director.
4. Before we proceed to notice the facts giving rise to this petition and proceed to discuss the merits of aforesaid contentions, we consider it appropriate to refer to another legal controversy arising in this petition.
5. Which is the competent authority to make appointment to the post of Dean in the Instittite:-
5. Though no specific plea has been raised in this petition, but during the course of arguments, the very competency of the Governing Body to make appointment to the post of Dean was questioned. As this aspect of the matter goes to the very root of the controversy involved in this case, we permitted and heard the learned counsel for the parties at great length on the question whether the Governing Body of the Institute is competent to make the appointment to the post of Dean of the Institute, The argument primarily being legal and only reference to the necessary provisions of the Act. Rules and Regulations/Instructions was necessary and keeping in view the importance of the question. We may also notice that in the light of the regulations framed by the Institute in the year 1995, this question is likely to arise in nature as well. Therefore, we considered it appropriate to deal with this question at the very out-set.
6. The Institute is a creation of the statute. The Institute was created by the Act of the Parliament by Act No. 51 of 1966. The Act is known as the Post Graduate Institute of Medical Education & Research Chandigarh Act, 1966 (thereinafter referred to as the Act), Sub Section (b) of Section 3 defines the Governing Body" to be the Governing Body of the Institute while sub Section (3) of the same Section defines "Institute" to be the Institute known as the Post Graduate Institute of Medical Education & Research Chandigarh incorporated under this Act. Composition of the institute is provided under Section 5. According to Section 7 of the Act, the President of the Institute shall be nominated by the Central Government from among the members, as detailed in Section 5, however, other than the Director of the Institute. The Institute shall constitute the Governing Body of the Institute in the manner as prescribed by the regulation. However, 1/3rd of the membership of the Institute shall not be in excess of 1/3rd of the membership of the Governing Body. As per provisions of Section 10(2), the Governing Body shall be the Executive Committee of the Institute and shall exercise such powers and discharge such function as the Institute may, by regulations made in this behalf, confer or impose upon it. The Institute, which is the permanent body has to discharge the function as postulated in Section 13 of the Act for promotion of the objects specified in Section 12. As per Clause (m) of Section 13 of the Act, the Institute can do all such other acts and things as may be necessary to further the objects specified in Section 12, Central Government in consultation with the Institute can frame rules under Section 31 while the Institute can make regulations in consistence with the act and the rules with the previous approval of the Central Government under Section 32 of the Act. In other words. Central Government is empowered to frame rules under Section 31 of the Act, while the Institute is vested with power to make regulation under Section 32 of the Act. Section 31(i)(f) of the Act reads as under:-
"31. Power to make Rules.
(1) The Central Government, after consultation with the Institute may by notification in the Official Gazette, make rules to carry out the purposes of this Act.
Provided that consultation with the Institute, shall not be necessary on the first occastion of making of rules under this section, but the Central Government shall take into consideration any suggestions which the Institute may make in relation to the amendment of such rules after they are made.
x xx xx
(f) the number of officers and employees that may be appointed by the Institute and the manner of such appointment."
7. The Post Graduate Institute of Medical Education & Research Chandigarh Rules 1967 were framed by the Central Government, in exercise of powers vested under Section 31 of the Act. Rules 7(4) of the said Rules provide that the scale of play, the method of recruitment, the age limit, the educational qualifications and other matters relating to the appointments to various posts in the Institute shall be as specified in the Schedule annexed to these rules. According to schedule attached to the rules, post of Dean was treated as selection post and the Dean was to be appointed by the Institute on the recommendation of the Director taking into consideration the seniority, suitability and other factors and post was to be treated by rotation. These rules were amended by notification G.S.R. 223(E) dated 24th March, 1984 where Rule 7 (5) was added, while deleting earlier Rule 7(4) of the Rules. According to Rule 7(5), the method of recruitment, the age limit, the educational qualifications and other matters relating to the appointments to various posts in the Institute shall be determined in the manner provided by regulations. The Institute had also framed the regulation called the Post Graduate Institute of Medical Education & Research Chandigarh Regulation 1967. The regulations were also amended by the Institute vide notification dated 15th June, 1984 and regulation 32(i) reads as under:-
"Qualification for appointment:- (1) Age, experience and other qualifications for appointment to a post shall be as specified by the Institute keeping in view the qualifications and experience prescribed by the Central Government for similar posts before applications of candidates are called for subject to the condition that non-medical personnel shall not be appointed to the posts of Director and Medial Superintendent."
8. It may be noticed that under regulation 34, seniority of the employees of the Institute in each category shall be determined by the order of merit in which they were selected for appointment to the grade in question those selected on earlier occasion being ranked senior to those selected later.
9. With the amendment of the rules in 1984, the schedule annexed to Rule 7 (4) also rendered inconsequential and ineffective under Rule 7 (5) of the amend rules in relation to appointment and recruitment. The methodology was to be determined in terms of the regulation. Regulation 32 provides for qualifications, experience, to be as prescribed by the Central Government for similar posts, but does not state anything in regard to appointing authority. However, learned counsel appearing for the Institute and the private respondents laid emphasis on Schedule-1 annexed to the regulation. This Schedule-1 is intended to detail the function and power of the Institute, Governing Body, President, Director and other administrative and finance matters. Entry 61 of the Schedule-1 reads as under:-
SCHEDULE-1 Powers of the Director, President, the Governing Body and the Institute.
Extent of Powers Sr.No. Nature of Powers.
Director President Governing Body.
! 2 3 4 5
61.
Powers to makeappointment to posts (subject to Rule 7)
i) Adhoc/Temporary Full powers for Group B,C & D and Assistant Professors not exceeding a period of one year.
Full powers for all Group A posts other than faculty posts. Professor & Associate Professor for a period not exceeding one year and Lecturers & Asstt. Professors for a period exceeding one year.
(ii) Permanent Group C & d posts. Group B posts Group A Posts.
10. The bare reading of the above entry shows that functions of appointment under this entry of the prescribed authority are subject to Rule 7 of the Rules which in turn are subject to the regulation, that may be framed by the Institute. The Institute in its wisdom amended the procedure and qualification for the appointment to the post of Dean. The amendment was incorporated after the Institute in its meeting dated 25.1.1995 amended the relevant provisions. This action of the institute was duly approved by the Ministry of Health and Family Welfare, vide their letter dated 3rd Jan. 1997. Under Section 32 of the Act, there is definite power vested in the institute to make/amend its regulation, of course, subject to the approval of the government.
11. In exercise of the powers vested in the Institute under Section 32 of the Act. The amendment of 1995 in regard to experience, qualifications and the appointing authority was brought about by the Institute. The said amendment reads as under:-
"As per Recruitment Rules approved by the Institute Body, vide Agenda Item No. 1 in their meeting held on 25.11.1995 and as approved by the Government of India Ministry of Health & Family Welfare Vide their letter No. V. 17020/9/96-ME (PG) dated 3rd January, 1997, the following qualifications/experience etc. stand prescribed for appointment to the post of Dean for a tenure of three years by rotation, at the PGIMER, Chandigarh.
"A' Professor and Head of Department of the Institute having at least three years experience as Professor with medical qualifications included in the Indian Medical Council Act, 1956 and/or recognised Dental Qualifications included in the Dental Act, 1948 would be appointed as Dean by the Institute on the recommendations of the Director of the Institute, taking into consideration the seniority, suitability and other relevant factors. The Dean would be appointed for a tenure of three years by rotation."
(emphasis applied by us)
12. Once in exercise of its power of delegated legislation, the Institute amended the regulation, which was duly approved by the Ministry concerned, it comes into force as j enforceable criteria/guide-lines for making appointment to the post of Dean.
13. Learned counsel appearing for the respondents intended to term the above provisions as a mere instructions. We are of the considered view that nomenclature of this clause would not be a material factor in determing the matter in issue.
14. Undisputed facts emerging from the record is that under Rule 7 (5) appointments are to be made to the Institute as per procedure prescribed under the regulations. Regulations are to be framed by the Institute, while exercising powers under Section 32 of the Act. The Institute in its meeting on 29.11.1995 had, introduced the said amendment which also received the approval of the Central Government as afore-noticed. Thus there is definite and legislative compliance of the provisions of the Act and the rules framed thereunder, which empowers the Institute to make regulation. The above regulation in no unambiguous terms states that the appointment to be post of Dean shall be made by the Institute. The Institute is a body created under the provisions of the Act and has a definite status, function and duties assigned to itself. Thus, while amending the regulation, the Institute in its wisdom has given unto itself the power to appoint a Dean. The Governing Body being executive committee has to exercise such power and discharge such function as are conferred or imposed upon it, as the Institute may term itself by making regulation. The statutory provisions, rules, do not thus, enable the Governing Body to exercise any power, authority or function, which is not delegated to it by the Institute. We are unable to appreciate the contention that the expression "would be appointed as Dean by the Institute" has been used purposelessly or is not intended to be implemented by the Institute. It is a settled principle of law that no expression used in a rule or regulation should be treated redundant or unmeaningful. On the contrary, due effect and meaning should be given to each expression of the rules, unless it frustrate or destroy the very purpose of the provisions.
15. Maxim A pactis privatorum publico juri non derogatur is an accepted principle of interpretation of provisions in England as well as in India. From the words of law there should not be any departure. Then the precise and unabiguous words are used in a rule or instruction, then they must be understood and expound limited to their natural and ordinary sense. The words used best declare the intention of the rule maker.
16. We may notice that under Rule 1967, expression used in Schedule attached to Rule 7 (4)(unamended) was similar to the present rule and appointment to the post of Dean ought to be made by the Institute. The plain reading of the above provisions shows that the appointment to the post of Dean is intended and ought to be made by the Institute. Such a view would certainly further the cause of the regulation. The post of Dean in the Institute is not only a pivotal post, but provides an additional administrative-cum-professional hand to the Director of the Institute for running the day-to-day functioning of the hospital and the academic courses more effectively. Entry No. 61 of Schedule-i looses its significance in face of the regulations as amended by the institute in November, 1995.
17. The appointment has to be made by the President for temporary post but for a permanent post of Grade-A under (ii) of Entry 61 of Schedule-1, the Governing Body is stated to be competent to make appointments but by amendment of relevant provisions in the year 1995, the Institute retained the power to make appointment to the post of Dean unto itself, the Agenda note itself opens with he expression as per the recruitment Rules, then it refers to the resolution of the Institute 1995 and approval of the Ministry in the year 1997. Thus, giving it complete colour as that of a regulations within the meaning and scope of Rule 7(5) read with Section 32 of the Act. Once this regulation (even it is taken to be instructions) has force of law which provides the manner and method, the factors to be considered for appointment to the post of Dean along with the authority which should make the appointment, then the entire process of recommendation, selection and appointment should be in strict adherence to the said regulation.
(emphasis applied by us)
18. It is a settled principle of law that once methodology for doing a particular act is provided under the statute, rules or regulations, then such act must be done in the manner and way prescribed alone and in no other way. Reference can usefully be made to a recent Division Bench Judgment of this Court in the case of K.G. Nanchahal and Anr. v. State of Punjab and Ors. CWP No. 8810 of 2001, decided on 11.10.2001, where the Court held as under:-
"It is a settled principle of law that the act must be done in the prescribed manner and no other way. The conditions of a rule and prescribed procedure must be satisfied and there must be application of mind. Reference in that regard can be made to the judgments of Hon'ble Supreme Court in the cases of State of Uttar Pradesh v. Singhara Singh and Ors., AIR 1964 Supreme Court 358: Hukam Chand Shyam Lal v. Union of India and Ors., AIR 1976 Supreme Court 789 and Chandra Kishore Jha v. Mahavir Prasad and Ors., JT 1999(7) S.C. 256.'
19. The purpose of such principle is so very obvious that the prescribed authority alone should exercise the power given to it. But for the prescribed authority, no other authority can assume such power merely for the reason that it consider it appropriate to do so and is vested with the some other power under the relevant rules/provisions. The supreme body under the statute, if has decided to vest to itself the power to appoint Dean of the Institute, it will be unfair to deprive the Institute of such power on an incorrect reference to the erstwhile provisions. Further more, it will be unfair to assume in law that despite Regulations of 1995. Entry No. 61 of Schedule-1 to Regulation 12 should take precedence and there should be deemed continuation of delegation in favour of the governing body. For these reasons, we are of the considered view that under the Regulations/Instructions of 1995, Institute is the competent authority to make appoint ment to the post of Dean of the Institute.
20. Facts giving rise to the present petition:
The petitioner Dr. Sudha Suri joined the Institute as Senior Resident on 1.2.1973. She did her Master of Medicine in Radio Diagnosis from the same Institute. She claims to be holder of "Diplomate American Board of Radiology, USA." She was appointed subsequently as Lecturer and then as Assistant Professor. On 14.10.1988 the petitioner was appointed as Professor and Head of Department of Radio Diagnosis and she is working as such till the institution of this petition. The petitioner has authored six text books on different branches of Radiology, in addition to contribution to various Chapters of different books and various publications in different journals. She claims to have been awarded Dr. B.C. Roy National Award by the President of India in the year 1998 for development of the speciality of Radio Diagnosis. She has also been awarded Kshnika Oration Award for the year 1997 for original research work in the field of Diagnostic and Therapeutic Radiological Abdominal Interventions by the Indian Council of Medical Research by Union Ministry of Health and family Welfare. The petitioner is also President of Indian Society of Neuro-Radiology.
On 31.8.1998 the post of Dean fell vacant upon retirement/superannuation of Professor Amrit Tiwari. On 2.5.2001 the respondents initiated the process for filling up the said post and asked for submission of willingness along with brief biodata/resume. The governing body of the Institute is stated to be competent to consider the appointment to the post-of-Dean. The meeting of the governing body was convened on 25.7.2001. In the amended petition the petitioner stated that no written recommendation of the Director was annexed to the agenda proposed to be put up in the meeting of the governing body on 25.7.2001, but it is understood that some verbal recommendations of the Director of the Institute was in favour of Dr. S.K. Gupta of the same Institute and not in favour of respondent No. 4. However, the governing body in its meeting of 25.7.2001, held under the chairmanship of Shri C.P. Thakur. Hon'ble Minister of Health and Family Welfare, appointed respondent No. 4 to the post of Dean, According to the petitioner there were no pre-determined criteria with the governing body to adjudge the suitability of the candidates. There is some dispute with regard to the seniority of the respondent No.4 viz-vis Professor Sarla Goplan, which obviously is not subject matter of this writ petition.
As already noticed, the governing body vide its decision dated 25,7.2000 approved the name of Professor Nagi for appointment of respondent No. 4 to the post of Dean.
Upon notice separate written statements were filed on behalf of respondents No. 4 and 1 to and 3 & 5 (collectively) respectively. The facts of the present case are hardly in dispute. According to the respondents, governing body is the competent authority to make appointments as per the relevant Regulations and Schedule-II attached thereto. The competent authorities had considered the case of the petitioner along with other eligible persons. It is stated on behalf of the respondents that there is no requirement of any rule that recommendation of the Director should be in writing. It is stated that the Director had expressed orally his recommendation in favour of Dr. S.K. Gupta, during the meeting of the governing body. The governing body thereafter considered the profile, relevant service record and seniority position of the candidates and after due deliberations, respondent No.4 was found to be the most suitable candidate for the said post. It has been specifically pleaded in paragraph No. 13 of the written statement that the appointment of Dean of the Institute is based on merit, taking into consideration the seniority, suitability and other relevant factors like capability of the incumbent with his fellow colleagues in day-to-day functioning of various departments as academic head of the Institute and not solely on the basis of seniority as alleged by the petitioner. A specific averment is made in the same paragraph that any of the eligible candidates has not been found unsuitable by the governing body, but it does not vest any right in being selected as Dean of the Institute. 'Recommendation of he Director was not in favour of respondent No. 4, but according to the written statement, it makes no difference as the prerogative for appointing the Dean is lying with the governing body.
According to the respondents, the bio-data/resume of the career profile of the various eligible candidates was placed before the governing body, the agenda note, which has been placed on record by these respondents as Annexure R/1, is identical to what has been placed by the petitioner as Annexure P/5. the professors whose names were considered by the governing body for appointment to the post of Dean, in order of their seniority, are referred at internal page 3 of the agenda note in the following manner:-
Sr. No. Name Date of Birth Date of appointment as Professor Date of Super annuation.
Prof.
1.
R.J. Dash 08.09.1941 22.10.1981 30.09.2001 "
R.N. Katariya 01.03.1948 26.04.1986 29.02.2002 (Not willing) "
A.K. Banerjee 23.07.1939 26.04.1986 31.07.2001
2. S.K. Gupta 14.12.1940 26.04.1986 31.12.2002
3. Sudha Suri 03.02.1944 14.10.1988 28.02.2006
4. Sarla Gopalan 29.02.1944 14.10.1988 28.02.2006
5. O.N. Nagi 17.09.1943 01.07.1990 31.09.2005 Respondent No. 4 also filed an independent written statement. It was stated on his behalf that on comparison of inter se merit, respondent No. 4 was found more meritorious by the competent authority and was selected. The locus-standi of the petitioner to file the writ petition was challenged. It was stated that challenge to the appointment of respondent No. 4 was wholly misconceived. According to the respondent he joined as Professor of Orthopaedics Surgery in July, 1990. He disputed the figures and content of publication and other qualifications as stated by the petitioner in her favour. It was stated that she is only one of the co-authors of various referred publications. The respondent has categorically made statement that he has published 147 national publications. He is a renowned Orthopaedic Surgeon. The respondent claims to be man of the year 1997 and has various distinctions to his credit.
Synchronised in their concise form the admitted facts as appear from the record relevant for answering the controversies in issue are that all the five candidates considered by the competent authorities are doctors of reputation, high profile service records with different distinctions and awards to their credit. Each one of them is Professor and Head of Department of his speciality. Their service records with bio-data/resume with the oral recommendation of the Director was allegedly discussed by the governing body resulting in the selection for appointment to the post of Dean of respondent No. 4, Admittedly, except the two lines minutes of the governing body meeting, there is no written record available or produced before the court which could show the criteria, basis and methodology adopted for selection to the post of Dean either by the recommending authority or by the appointing authority.
21. Effect of total lack of reason(s) or even any expression of opinion on record maintained in normal course of business on such appointment:-
Providing of reasoning in administrative action may not be of essence in all such action. In order to attach credence to the process of selection and fairness to the decision making process, it appears to be somewhat obligatory upon the authorities concern to provide some kind of expression to the thought of processing which ultimately culminates into final decision. Reasoning as understood in its wider concept, unlike arguments contended in a court of law would be desirable basis for visualising an ideal situation of administrative decision. To avoid apparent arbitrariness, the records must indicate application of mind on some basis alike a criteria if not an absolute criteria for determining the choice of the authority from amongst eligible candidates. The object sought to be achieved is fairness, proper application of mind and appropriate selection. Fairness in administrative action must not only be done but must also appears to have done in consonance with the basic provisions of law as well as rules.
The Hon'ble Supreme Court of India in the case of Union of India and Ors. v. E.G. Wambudiri, 1991 (2) S.L.R. 675, while considering the desirability of administrative authorities recording reasons held as under:-
"Where an administrative authority is required to act judicially it is also under an obligation to record reasons. But every administrative authority is not under any legal obligation to record reasons for its decision, although, it is always desirable to record reasons to avoid any suspicion. Where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and in the absence of reasons the order would be rendered illegal. But in the absence of any statutory or administrative requirement to record reasons, the order of the administrative authority is not rendered illegal for absence of reasons. If any challenge is made to the validity of an order on the ground of it being arbitrary or malafide, it is always open to the authority concerned to place reasons before the Court which may have persuaded it to pass the orders. Such reasons must already exist on records as it is not permissible to the authority to support the order by reasons not contained in the records. Reasons are not necessary to be communicated to the Government servant. If the statutory rules require communication of reasons, the same must be communicated but in the absence of any such provision absence of communication of reasons do not affect the validity of the order.
There is no dispute that there is no rule or administrative order for recording reasons in rejecting a representation. In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reason. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the question raised by the Government servant and examine the same, in the light of the comments made by the officer awarding the adverse entries and the officer counter-signing the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the Government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a court of law it is always open to the competent authority to place the reasons before the Court which may have led to the rejection of the representation. It is always open to an administrative authority to produce evidence aliunde before the court to justify its action. (emphasis applied by us) A somewhat different view was expressed by two Judges Bench of the Hon'ble Supreme Court in the case of R.S. Dass v. Union of India, 1986 (4) S.L.R. 475. In this case, their Lordships observed that in absence of statutory rule, there was no requirement for the authority to record reasons for selection and non-selection of a person. They also held that principle of natural justice were not attracted in regard to promotion to higher service in the State Service. However, the case of S.R. Dass (supra) was specifically noticed and explained by the Hon'ble Supreme Court of India in the subsequent judgment of Hon'bte Supreme Court of in the case of State of Rajasthan v. Sriram Verma and Anr., 1986(6) Supreme Court Cases 493. In this case, the Hon'ble Apex Court, while considering various previous pronouncements of the same court in regard to reasoning, considered distinction between desirability of recording reasons and it being obligatory and necessary in all cases. The Court held as under:-
"The High Court has pointed out that such selections are likely to be challenged in a court of law and if no reasons are recorded-or at feast the record indicates the reasons-for superseding a senior and selecting his junior, the Court would not be in a position to consider the grievance effectively and satisfactorily. This argument brings to our mind the decision in Bhagat Raja v. Union of India but that was a case where the order questioned before the court was a quasi-judicial order. It is equally true that even in administrative matters, this Court has been insisting upon the duty to act fairly which may sometimes require an opportunity of hearing? But having regard to the nature of function of selection-and taking into consideration the fact that the only right of the government servant is a right to be considered and not a right to promotion-we do not think it possible to infer the requirement of recording reasons in all situations. At the same time, we think that it is always desirable that procedure adopted by the selecting body should be fair and such as to lend credence to the process; it should be such as to inspire confidence in all concerned within the practicable limits. From this point of view, it would be a wholesome step for the Government of Rajasthan-for that matter, all Government-to provide either by amendment of Rules or by general instructions that in the matter of promotions on the basis of merit or merit-cum-seniority/merit-cum-suitability, the selecting authority should follow the method of grading all the candidates appearing before them. This requirement we are suggesting in case where the Rules do not provide for grading or for awarding marks or for recording of reasons for overlooking a senior: where, however, the Rules already provide for awarding of marks or any other appropriate method, our suggestion may not be applicable. It must also be understood clearly that ours is a suggestion to avoid complaints of arbitrariness and primarily with a view to make the process credible. The Governments shall keep this underlying object in mind and cause appropriate amendments or issue appropriate instructions. It is obvious that any such amendments/ instructions shall have only prospective operation."
A three Judges Bench of the Hon'ble Apex Court in the case of Chabungbam Ibohal Singh v. Union of India, 1995 (supl) (2) S.C.C. 83, while declining to interfere into the selection made, enunciated and stressed the need for recording of reasons, while a junior is promoted superseding his senior. In this case their Lordships of the Hon'ble Supreme Court of India held as under: -
"His assessment was, however, recorded as "very good" whereas qua the appellant it had one stated unfit. As the appellant was being superseded by one of his junior, we do not think if it was enough on the part of the Selection Committee to have merely stated unfit and then to recommend the name of one of his juniors. No reason for unfitness, is reflected in the proceedings, as against what earlier Selection Committee had done to which reference has already been made."
Applying the above enunciated principle of law to the facts of the present case, it is not disputed that the recommendations of the Director in favour of Dr. S.K. Gupta was not in writing and is alleged to have been orally made during the course of meeting of the Governing Body. The recommendations of the Director was rejected by the Governing Body again for no reason to be traced on record and respondent No. 4 was appointed to the post of Dean. It is unfortunate that the entire record produced before us only contain the decision of the Governing Body which reads as under:-
'Item No. 44Appointment of Dean at POIMER, Chandigarh The panel of names and the recommendation of the Director, PGIMER, Chandigarh was placed before the Governing Body. After considering the bio-data of the candidates in detail, the Members of the Governing Body approved the name of Prof. O.N. Nagi, for appointment as Dean, PGIMER, Chandigarh."
Besides above four lines, there is no record produced before the court, which could even remotely suggests as to what weighed with the recommending authority or the Governing Body for finding the other senior candidates to respondent No. 4 as unsuitable for appointment to the post of Dean. 'The institute in its affidavit has stated that none of them were found unsuitable for promotion. If that be so how could senior be rejected without adopting any criteria or giving any reasons whatsoever. While we mention about giving reasons, we do not even intend to remotely suggest that detailed order or noting should have been recorded on the file or records of the institute maintained during normal course of its business. All that is expected and desirable is that a definite expression of Opinion by the concerned authority, which would clearly show the proper decision making process culminating into fair and just final decision. Not even an iota of suggestion or process of forming view by the Director or the Governing Body is available on record. In fact, it was conceded by the learned counsel appearing for the Institute that except the above resolution, there was no record of recommendation and present appointment of Dean with the Institute. It is apparent that bio-data/resume submitted by the respective Professors was circulated to the members of the governing body. The afore-stated minutes of the governing body mention "recommendation of the Director, PGIMER Chandigarh was placed before the governing body."
We have already noticed that an oral recommendation was made in favour of Dr. S.K. Gupta during the course of meeting of the governing body, by the Director. The expression placed on record in its common parlance would mean placing or keeping a document on record. Admittedly, there was no recommendation in writing which could be placed on record. The governing body further recorded that it approved the name of respondent No. 4 appointment as Dean. Approval is an act of approving, grant of formal -permission op sanction. It normally would refer to an existing order/fact. In the present case, the recommendation of the Director was not approved by the governing body. No reasons or opinion expressed by the recommending authority for recommending Dr. S.K. Gupta from the panel under consideration, the governing body again does not record anything much less reasons for differing with the recommendations made and for selection of respondent No. 4 was junior most Professor and Head of the Department amongst the empanelled persons. This by no stretch of imagination could be stated to be sufficient compliance to the basic rule of fair play and proper application of mind by the concerned authorities. It offends the twin test provided under the well settled cannons of service jurisprudence i.e. fair play in administrative action and proper application of mind by the concerned authorities. Such infringement would have but an inevitable result of adding colour of arbitrariness to such administrative action.
Oral recommendation of the Director, unsupported by any process of forming of opinion on records, its outright rejection by the Governing Body for unknown reasons and absence of any criteria lends full support to the contention of the petitioner that the appointment to the post of Dean infringes the basic rule of fair play in administrative action in the facts and circumstances of the case. We are of the considered view that the recommending committee as well as appointing authority may not record distinct reasons in support of their decision but basis of opinion formed leading to the final decision necessarily should be exhibited on record. The institute is a statutory body and must work on the basis of the record and in consonance with the accepted norms of administration. Expression of reasons in its absolute term is not the demand of fair play but some kind of resemblance to a proper decision making process in the form of a note or suggestion indicating the preference of the concerned authority, (as that alone would provide some material for scrutiny before the court, if the appointment is challenged, amongst others, on the ground of arbitrariness.) The court would only proceed to decide the matter on the basis of the record and cannot go into the mind of the concerned authority/authorities.
Another factor that has weighed with the court in taking the above view is that the appointment to the post of Dean is an appointment of dignity with higher responsibility and the senior most persons in the institute who have served for years in the institute are aspiring for that post. It is not a case where thousands are to be considered and hundreds are to be appointed. In the present case, only 4 or 5 empanelled doctors have to be considered and one out of them is to be appointed to this post. Thus, there is an in built essential requirement that the decision of the recommending authority and appointing authority should satisfy the ingredients of the duel test afore-noticed, which should be apparent on the record of the Institute. A somewhat casual approach may lead to the challenge of such appointment for multifarious reasons and grounds.
At this stage, it may be appropriate to refer to the principle enunciated by the Hon'ble Supreme Court in the case of A.K. Kraipak and Ors.v. Union of India, 1969 (2) S.C.C. 262. While noticing the radical change in the scope and concept of judicial review of administrative power and quasi judicial power, expressing the kinds of adherence to the rule of fair play, the court held as under:-
"This aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years......"
"Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case."
In view of our afore-noticed reasons and keeping in mind the principle enunciated by the Hon'ble Supreme Court of India, we are constrained to hold that the decision of the Governing body dated 25.7.2001 is not sustainable. In fact, there are no reasons, no views and no suggestions of the competent authority on record, which could even remotely support the decision.
22. Is the recommendation of the Director binding on the appointing authority or what weightage or persuasive value is to be given to such recommendation?
Commonly relied upon the document Annexure P/5 and Annexure R/1, is the agenda Item No.44 for the current meeting, which in turn reproduces the relevant instructions and considerations essential for appointment to the post of Dean for a period of three years by rotation. It is a permanent post but appointee is by rotation. This instruction/regulation has found place under the Rules of the Institute as well as after the amendment of the Regulations in 1995. The instruction.regulation as has been reproduced here-in-above, has the following basic ingredients:-
a) Professor and Head of the Department of the Institute hiving at least three years experience as Professor with the prescribed medical qualifications:-
would be appointed as Dean by the Institute, on the recommendation of the Director of the Institute, taking into consideration the seniority, suitability and other relevant factors and the Dean would be appointed for a tenure of three years by rotation.
As is clear from the above provision, which has the force of law, as it is referred as Recruitment Rule framed by the governing body (highest body of the Institute) and duly approved by the Government of India in accordance with law. this is the basic requirement of a regulation under the provisions of the Act and the rules framed thereunder. The process for filling up the post of Dean, therefore, commences at the office of the Director wherein he is required to recommend the name(s) for appointment to the post of Dean. The singular expression used in the instructions/rules would, obviously, include the plural thereof. The Director is competent to recommend the name/names for the afore-stated purpose. The emphasis by the rule making authority, which even existed in the erstwhile rules, is upon the recommendations of the Director.
The expression recommendation has to be given its precise and definite meaning. Once the legislative or delegated legislative authority has chosen a particular expression with definite emphasis, than that term must be given its true meaning to further the cause of the rule. Appointment of the Dean by the Institute, on the recommendation of the Director, indicates the emphasis that the rule making authority sought to attach to this aspect of the matter. Recommendation of the Director is to be based upon seniority, suitability and other relevant factors. The later part of the instructions, regulations must be read ejus dem generis to the earlier part. The criteria of seniority, suitability and other relevant factors is equally applicable both to the recommending authority as well as to the appointing authority. That is the only plausible and reasonable way of incorporating this clause as it would help to further the cause of the provision and avoid arbitrariness in such action The recommendation of the Director cannot be arbitrary. It has to be rational and based on some plausible and rightful criteria. The criteria itself is indicated in the instructions/regulations. To provide clear precepts to the governing body for exercising its discretion, free of arbitrariness, these parameters would squarely apply to them also while making such appointment.
The expression "recommendation" has been the subject matter of judicial pronouncement and. the Hon'ble Apex Court in the case of A. Panduranga Rao v. State of Andhra Pradesh, (1975) 4 S.C.C. 709, explained this expression as follows:-
"The High Court in the judgment under appeal felt some difficultly in appreciating the meaning of the word "recommended". But the literal meaning given in the Concise Oxford Dictionary is quite simple and apposite. It means "suggest as it for employment" In case of appointment from the Bar it is not open to the Government to choose a candidate for appointment until and unless his name is recommended by the High Court.
"Recommend" has been defined by the Chambers Dictionary (Delux Edition) as, to command or introduce as suitable for acceptance, favour, appointment or choice. The meaning of "recommendation" as per Webster's Encyclopedic Unabridged Dictionary (new revised edition) is: an act of recommending. 2. a letter or the like recommending a person or thing. 3. representation in favour of a person or thing.
The concept of recommendation as accepted in its common parlance and more particularly in the service jurisprudence pre-suppose recommendation in writing. Such an approach would be in conformity with the working of the Government or the Institute where regular records are required to be maintained in the normal course of business. A recommendation in writing pre-supposes application of mind, based on a prescribed criteria and expression of opinion of the recommending authority. In the present case, recommendation has a great significance and a wider meaning. The recommending authority is required to consider other relevant factors in addition to seniority and suitability. This pervasive expression takes into its ambit the undermined factors which have been termed by the Institute itself, the compatibility of the incumbent in regard to his fellow colleagues and capacity to handle academic affairs etc. Dean is required to work in full co-ordination and co-operation with the Director. That is why there has been a definite stress on his recommendation for appointment to the post of Dean.
The value of recommendation and its far reaching consequences were subject matter of adjudication before this Court in the case of Dr. Harinder K. Bali v. The Union of India, 1993(2) Recent Services Judgments 512 relating to the appointment of Associate Professor of Cardiology in the same Institute, wherein it was held as under:-
"To conclude, I hold that the appointing authority is not bound in every case to accept the recommendations of the Selection Committee and may for good and valid reasons, turn down the same. However, if it chooses to make appointments, then it cannot appoint a person other than the one recommended by the Selection Committee and that too in the same order of merit in which they were selected by the said Committee. For the view that I have taken, I am fortified by the following observations of their Lordships of the Supreme Court in Jatinder Kumar v. State of Punjab, AIR 1984 S.C. 1850, where the question was whether a person selected by the Subordinate Services Selection Board for direct appointment has an unfettered right to be appointed on the basis of the recommendations made by the said Board"
"....The selection by the Commission, however, is only a recommendation of the Commission and the final authority for appointment is the Government. The Government may accept the recommendation or may decline to accept the same.....
This however, does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept the recommendation of the Commission. If, however, the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission. It cannot disturb the order of merit according to its own sweet will except for other good reasons viz. bad conduct or character. The Government also cannot appoint a person whose name does not appear in the list. But it is open to the Government to decide how may appointments will be made...."
"Similar observations made earlier by the Apex Court in the State of Haryana v. Subhash Chander Marwaha, AIR 1973 S.C. 2216 also led support to view that I am taking. It would be pertinent to quote the following observations:
".....Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government proposed to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list and (ii) shall make the selection for appointment strictly in the order the candidates have been placed in the list published, in the Government Gazette. In the present case neither of these two requirements is infringed by the Government...."
Rule 10 (ii) referred to in this judgment is pari materia with Regulation 34 as quoted above.
In a somewhat similar context, the Apex Court again in Shankarsan Dash v. Union of India, AIR 1991 S.C. 1612 observed as under:-
".....Unless, the relevant recruitment rule so indicate, the state is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill-up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test and no discrimination can be permitted..."
In the instant case, the Governing Body did not accept the recommendation of the recommending authority and appointed respondent No. 4 despite recommendation in favour of Dr. S.K. Gupta. The appointment is, thus questioned on this ground, which apparently has some merit.
The recommendation of the Director is not a routine matter but is substantive act/ step into the process for appointment to the post of Dean. The recommendation of the Director must be specific in writing and preferably opinion based founded on the criteria prescribed under rules/instructions. Still the recommendation of the Director cannot be stated to be totally binding upon the governing body/appointing authority.
The Institute as an authority, in the hierarchy of its organisation is superior to the governing body and the Director. Its members are experts in their own filed including that of medicine and have the competence to appoint a most suitable person for the post of Dean. Seniority alone cannot be the basis for appointment to the post of Dean. All provided factors must be given their due weightage while considering candidates for this appointment. Presently, we are concerned whether the recommendation of the Director could be totally by the governing body and that too, without any reasons for such conclusion and prescribing any criteria for its consideration. The governing body/the appointing authority is boliged to consider the recommendation of the Director with due weightage and in is correct perspective. Equally true is that the appointing authority may necessarily be not bound by the recommendations as ultimately the discretion for appointment to the post of Dean vests with the appointing authority.
The regulation anticipates due application of mind by both the recommending and appointing authority independently. This must be done in the manner prescribed and in no other way. If the recommendation of the Director could be turned down by the appointing authority without reason and in an arbitrary manner, the function of the Director assigned under the rules and instructions would become redundant or ineffective. On the other hand, if the recommendation of the Director has to be taken as absolutely binding on the appointing authority, the role of the appointing authority would again be inconsequential. None of the authorities can render the other authority prescribed under the niles, as ineffective or redundant. The regulation postulates the appointing authority to exercise its choice of appointment on satisfaction of the ingredients specified therein. If recommendation was to be binding in terms, it will leave no choice with the appointing authority. That does not appear to us the intent of the regulation/instructions. There has to be a proper equilibrium in exercise of the powers of the respective authorities and a harmonious working between the two to achieve the object of the rule or instructions i.e. appointing the best available person for good reasons to the post of Dean of the Institute.
Recommendation upon due consideration of relevant factors, is the privilege of the recommending authority and to give the same due weightage in relation to matters of appointment, would be obligatory upon the appointing authority. Any interpretation of regulation/instructions which would render either of the authorities disfunctional or nonfunctional in the method of appointment, would have to be discouraged. Mischief must be prevented and not introduced by procedural interpretation. The scheme of principle legislation and other ancillary legislation make it obligatory upon the concerned authority not to inter mingle the fine distinction proved in the language of the statute/rule. The clear distinction between the functions to be performed by each authority must be clearly understood with an intention to prevent the mischief or absolute arbitrariness in State action.
The Hon'ble Supreme Court of India in the case of State of U.P. v. Delhi Cloth Mills, (1991)1 S.C.C. 454 held that the provision of statute should be construed in the light of the mischief it has designed to remedy. Thus, the approach which would minimise the exercise of arbitrary discretion should be adopted i.e. both authorities have to be given liberty of choice in their respective fields.
The most purposeful way of interpreting the above instructions/regulations would be that the Director recommends in order of preference, names of more than one persons for appointment to the post of Dean. The appointing authority by attracting due weightage to the recommendations then should appoint a person to the post of Dean, keeping in view the criteria provided under the instructions/ regulations. Curious would the situation where, for compelling reasons, the appointing authority finds it difficult to concur to all the names recommended by the Director, and if that be so, there could be no prohibitation in law, for the appointing authority, to make appropriate appointment from the eligible persons and for sound and valid reasons. These are the only observations of the Court, obviously leaving it for the authorities to act in the manner they consider it appropriate, keeping in view the provisions of the Act, rules and regulations.
As far as the facts of the present case are concerned. It is admitted position on record that the Director made recommendations in favour of Dr. S.K. Gupm orally during the course of the meeting. This recommendation firstly finds no place on the record of the Court as it is stated to be oral. No material has been placed before the Court so as to enable the Court to see whether the power exercised by the Director is arbitrary or is for some valid and proper reasons. Expert bodies or professorates are experts of their line and the Court would normally not sit in judgment over the discretion exercised by them unless it suffers from the vice of arbitrariness or is based on no reason, whatsoever. This unreasoned recommendation was rejected again for no reason, whatsoever. Respondent No. 4 had not been recommended by the Director of the Institute. Thus, his appointment offended one of the basic features prescribed under the rules. Even if it is assumed that the appointing authority could exercise such a power, then it was mandatory for it to record some kind of opinion or reason for rejecting all others and granting appointing to respondent no.4.
During the course of arguments learned counsel for the petitioner referred to Annexure P/10 and P/11 annexed to the petitioner to contend that as a matter of practice the Director has always been recommending the names for appointment to the post of Dean in writing and even seniority was maintained in appointment to the post of Dean inter se of the Professors and Heads of Departments. On the other hand, the learned counsel appearing for the Institute as well as the private respondents referred to the pleadings and annexures to argue that the recommendations have even been made by the Director orally on earlier occasions. We do not intend to deliberate much on this disputed fact. A practice adopted by the Institute in the past can certainly be a god guide for future. But such a practice should be in conformity with the basic rule of law and the norms governing the conduct of business of such an Institute. It does not stand reason why should the recommendation of the Director for appointment to such a coveted post should be oral. It will introduce the element of unfairness and would also offend the basic provisions of the rules regulating the Institute to maintain its records in normal course of its business, including that of minutes of the governing body of the Institute. Thus, a good practice of the past alone can provide good guidance for future. We are of the firm view that the recommendation of the Director should always be in writing, preferably on the basis of the record. Reference in this regard can be made to a Division Bench judgment of this Court in the case of Ms. Prerna Dean v. Christain Medical College, Ludhiana, CWP 9546 of 2001, decided on 8.11.2001, where court held as under:-
"A Division Bench of this Court in the case of Sujita Raj v. Post Graduate Institute of Medical Education and Research Chandigarh etc., CWP No. 12914 of 2001, decided on 11.10.2001. held as under:-
"It is a settled principle of law that practice adopted and followed in the past to the knowledge of the public at large can legitimately be treated as good practice acceptable in law. The practice so adopted can fairly be quoted to instructions or rules unless it is offending any specific provisions of law or written instructions issued by the government in that behalf. Certainly a practice adopted by the institute for a number of years in the past, which is not opposed to public policy or terms of the notification issued by the State as well as the conditions of the brochure normally would not be interfered by the Court at this late stage. Reference in this regard can be made to the judgment of the Hon'ble Supreme Court in the case of The Dy. Commissioner of Police and Ors. v. Mohd Khaja Ali, 2000(2) S.L.R. 49."
The matters which are clarificatory in nature and have been consistently implemented by the institution uniformly, thus, should not be normally disturbed by the Courts. Of course, exceptions to this general principle are many and one of the valid exceptions would be that subsequent order's and instructions are in conflict with the original terms of the brochure and to an extent that it prejudicially affects the accrued rights of the applicants under the original brochure."
A defective recommendation would obviously result in vitiation of the entire process of selection. Recommendation remains an essential feature in the process of appointment despite the fact whether the criteria would be seniority-cum-merit or selection by merit. In the case of A.K. Kraipak (supra), the Hon'ble Supreme Court held as under:-
"If the decision of the selection board is held to have been vitiated, it is clear to our mind that the final recommendation made by the Commission must also be held to have been vitiated. The recommendations made by the Union Public Service Commission cannot be disassociated from the selections made by the selection board which is the foundation of the recommendations of the Union Public Service Commission."
The onus of acting fairly and on the basis of the record in making recommendation, on the recommending authority is heavy. The record must reflect that the choice of the recommending authority is not vitiated because of unfairness or arbitrariness. If a penal is recommended by the Director, it is bound to eliminate arbitrariness on the one hand, and on the other it would facilitate the smooth functioning and choice of appointment by the appointing authority.
23. Selection, taking into consideration Seniority, Suitability and other relevant factors for appointment to the post of Dean :-
We have already noticed that the Institute is a creation of a Statute and is the supreme body under the provisions of the Act in regard to the affairs of the Post Graduate Institute. Governing body is a delegatee in regard to its functions and powers of the Institute and so is the President of the Institute. It was conceded before us that there is no provision in the Act which directly relates to the appointment of the Dean of the Institute. Under Section 31, power is vested in the Central Government to frame regulations in consultation with the Institute. Under Section 31(2)(b) power is vested in the Central Government to frame rules in regard to the number of the officers/employees that may be appointed by the Institute and the manner of such appointment. Under Section 32, power is vested in the Institute to make regulations with the previous approval of the Central Government to carry out the purpose of the Act and such regulation has to be consistent with the provisions of the Act and the rules framed thereunder. The Rules as amended in 1984 introduced Rule 7(5). Thus rule provided that the method of recruitment, the age limit, the educational qualifications and other matters relating to the appointments to various posts in the Institute shall be determined in the manner provided for by the regulations. In other words, the rules in relation to matters of appointments were to be controlled by the regulations which may be framed by the Institute, Finally, in 1995, the Institute amended the regulations which have been termed by the learned counsel, for the parties as instructions, providing for the matters relating to the appointment of the Dean in the Institute. To us, it appears to be nothing but a regulation, because the Institute in its meeting held on 25.11.1995 approved inclusion of this matter which received the approval of the Central Government on 3.1.1997. This much is required for a regulation to be enforced. In any case, the entire matter in regard to appointment to the post of Dean will be controlled by this particular provision.
Prior to 1995, firstly Schedule to Rule 7.4 was regulating the appointments, more or less, on similar lines. After amendment of 1984, the matter was totally controlled by the regulations and Schedule-1 to the regulations referable to Regulations No.I 2, 22 and 25(ii). Under Item No.61 power to make appointments of permanent post in Group 'A' vested in the governing body. The governing body under the provisions of the Act is only a delegatee and creation of the supreme body i.e. the Institute. If the Institute has opted to exercise the power of appointment to the post of Dean itself, no error of jurisdiction or otherwise can be traced in such a step taken by the Institute. The amended provisions of 1995 i.e. the regulations, vested the power of appointing the Dean in the Institute. The criteria for appointing has been spelled out in the same regulation/instructions.
The principle of selection or appointment by seniority, suitability and taking into consideration other relevant factors itself indicates that such a appointment cannot be equated to a selection on merit in direct recruitment cases. The scheme of the Act and the rules from there-under clearly; indicate due respect for seniority. Where the appointment is to be made on the basis of considering the above factors, merit alone cannot be taken to be the absolute criteria, de hors the other relevant factors. Merit is one of the paramount considerations, but cannot be said to be the sole consideration, which would frustrate all other factors which have been specified factors and it cannot frustrate the prescribed essential ingredients to exercise its discretion. The instructions/regulations of 1995 by necessarily restricts the scope of discretion to be exercised by the concerned authority.
They are expected to act in adherence to such provisions and their actions must not infringe the very spirit of provided ingredients.
We have already noticed that there is no record much less appropriate record, to sup-port the decision of either the recommending authority or the appointing authority or the governing body. The recommending authority choose not to give any reasons and rather made an oral recommendation during the course of meeting for the reasons of good merit are ignored, the authorities are expected to at least make such kind of a record, so as to satisfy the minimum basic requirements of fair consideration. It is also for the reasons that some material should be available before the Court in the event such appointments are questioned and are subjected to judicial review. Lack of sufficient material itself indicates higher degree of arbitrariness in such action. No record, whatsoever, has been produced before the Court, except a three lined afore-noticed resolution of the governing body, to justify the appointment of respondent No.4 to the post of Dean of the Institute. There is no record which could satisfy the Court that the authorities concerned made out certain criteria, based upon the essential ingredients specified in the regulations/instructions and there was any kind of assessment of the eligible candidate by the recommending or even by the appointing authority. The Court cannot go into the mind of these authorities, appointing authority. It has to draw inferences from the record produced. Complete absence of record to support the decision of the authorities concerned vitiates the decision taken, as the process of decision making itself is defective and irregular.
It is true that the biodata/resume submitted by the candidates, along with confidential reports, was placed before the governing body as an agenda note, but on what basis and on satisfaction of what criteria respondent No.4 was granted preference in appointment than his seniors, is not traceable or reflected by any logical reasoning.
Another factor which the Court must take note of is that the appointment to the post of Dean is restricted to the Senior Professors and Heads of Departments of the Institute itself and no outsider is even considered for this appointment. In other words, it is a kind of incentive provided to the Senior Professors and Heads of various Departments of the Institute that they could be appointed Dean, subject to their satisfying the prescribed criteria. Admittedly, respondent No.4 was at Serial No.5 and the junior-most Professor and Head of Department being considered for appointment to the post of Dean. Others, including the petitioner, were senior to the said respondent.
According to the stand of the Institute, none of the senior persons was found to be unsuitable for appointment to the post of Dean except Professor R.N. Kataria, who had not given his willingness for that appointment. All the Professors and Heads of Departments considered for this appointment appear to have a very high profile and brilliant academic and professional service record. Some remarks have been shown against Dr. R.J. Dash. Other confidential reports of the said doctors are very good or outstanding. Once there is such highly competitive career profile of the eligible candidates, greater responsibility is placed upon the recommending and appointing authority in regard to finalising the names for appointment to the post of Dean. It would be necessary to maintain some record justifying appointment of one or more doctors for recommendation out of the penal of the doctors falling in the zone of consideration and for making an appointment.
A bare reading of the above instructions/regulation shows that it is not an appointment purely on merit upon selection. It vests wide jurisdiction to take into consideration seniority, suitability and other factors, in the concerned authorities. The expression "other factors" further indicates legislative intent to take into consideration such other relevant abilities, like compatibility, professional caliber and administrative capacity of the applicant into consideration while finally selecting a person for appointment to this post. The learned counsel appearing for all the parties placed reliance upon the judgment of the Hon'ble Supreme Court in the case of B.V. Sivaiah and Ors. etc. v. Addanki Babu, AIR 1998 Supreme Court 2565. The learned counsel for the respondent No. 4 while replying upon the said judgment contended that the authorities concerned were not required to make assessment of the competitive merit of the officer alone as the appointment is purely on merit. On the other hand, learned counsel for the petitioner relied upon the following observations made by their Lordship in the afore-mentioned judgment:-
"While applying the principle of seniority-cum-merit for the purpose of promotion what is required to be considered is inter se seniority of the employees who are eligible for consideration. Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the select list for appointment, such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect to the such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion on the basis of seniority-cum-merit seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service.
We thus arrive at the conclusion that the criterion of seniority-cum-merit in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit."
Where appointments are to be made on the basis of merit-cum-suitability, certainly seniority has a very negligible role to play. But it is again of importance where merit and ability are approximately equal or where it is not possible to access inter se merit. Reference in this regard can be made to the judgment of the Hon'ble Supreme Court in the case of State of Bihar and Ors. v. Bageshwari Prasad, 1995 Suppl. (1) SCC 432. In other words, it can also be said that seniority has a secondary role where the appointment is to be made only on the basis of merit and suitability (Union of India v. Mohan Lal Capoor and Ors. 1973(2) SCC 836). But in the present case appointment is not to be made only on the basis of merit or suitability. There are four essential ingredients which are to be considered by the concerned authorities before making the appointment and then Judge the best candidate for appointment to the post of Dean. Thus, this appointment cannot be compared to an appointment purely on merit, de hors the seniority, suitability and finding the candidate based on the basis of other relevant factors. At this stage, it may be relevant to refer to the judgment of the Hon'ble Supreme Court in the case of Union of India v. Lt. General Rajendra Singh Kadan, AIR 2000 SC 2513 where dealing with the selections in the India Army, the Court held as under-
"The hierarchy in the Army and the method of selection and promotion to various posts starting from the post of Lieutenant and going up to the post of Chief of the Army Staff will clearly indicate that the posts of Lieutenant, Captain and Major are automatic promotion posts on passing the promotions examination irrespective of inter se merit, whereas the posts from Major to Lt. Colonel, Lt. Colonel. Colonel to Brigadier to Major General and Major General to Lt. General are all selection posts filled up by promotions on the basis of relative merit assessed by the designated selection boards. From Ltd. General (Corps Commander) to Army Commander is a non-selection post to which promotion is made subject to fitness. It is promotion subject to fitness in ail respects, although the rank remains the same. From the post of Army Commander to that of the Chief of the Army Staff, it is by promotion for which no specific criteria have been laid down. There have been precedents where the senior-most Army Commanders have not been appointed as the Chief of the Army Staff. Selection implies the right of rejection depending upon the criteria prescribed. Selection for promotion is based on different criteria depending upon the nature of the post and requirements of the service. Such criteria fall into three categories, namely: -
1. Seniority cum fitness.
2. Seniority cum merit.
3. Merit cum suitability with due regard to seniority.
Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "Seniority-cum-" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion to All India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them"
In the light of the above enunciated principles of law and the amended regulation instructions we are unable to persuade ourselves that seniority is an irrelevant factor and can be absolutely ignored by the concerned authorities. Determination of better merit has to have some basis, some criteria rationality and certainly record to support it, decision of the authorities, if not well reasoned, must have some resemblance thereto. Reasoning is the soul of a fair decision. Absence of reasoning may be tolerable but there has to be at least some iota of record to support the decision making process and the ultimate decision. All these factors are conspicuous by their absence on record in the present case.
Principle of equality includes fair opportunity of consideration must emerge from the record itself and not supported by affidavits before the Court. The relevant time for determination is the record which was in existence at the time of making the decision and not subsequent thereto. These are not the irregularities but are patent infirmities in the decision making process, which would essentially render the final decision unsustainable.
If it was to be assumed that governing body had the authority to make the appointment, still the decision of the governing body would be vitiated inter alia for the afore-stated reasons. We may summarise the apparent infirmities as a result of which this Court is unable to sustain the appointment of respondent No. 4 to the post of Dean:-
a) "Oral recommendation ex-facie indicates lack of due application of mind and fair consideration of other eligible candidates.
b) No reasons have been stated and no record has been produced before the Court to show why recommendation of the recommending authority was not accepted by the governing body.
c) No criteria has been brought to the notice of the Court which was uniformly applied for considering all the eligible persons by the appointing authority and for what reasons the claim of seniors who were admittedly found suitable for appointment by the Institute itself, was ignored.
d) No record, whatsoever, is available which could even remotely suggest compliance to the provisions of seniority, suitability and taking into consideration other factors by the competent authority for making the appointment:
e) Record of the case shows definite element of arbitrariness in the action of the recommending/appointing authority, which offends the underlying principles enshrined in Article 16 of the Constitution of India.
f) The appointment to the post of Dean could be made by the Institute itself and governing body was not competent to do so.
29. Reliance on behalf of the Institute was also placed upon a Division Bench, of this Court in the case of Dr. S.K. Mehta v. The Post Graduate Institute of Medical Education and Research, 1993(6) SLR 63. This case is not of much help to the Institute as well as to the private respondents in the present case. Firstly, the facts of this case were totally different. The negative recommendations in writing were made by the Director which were placed before the governing body & were objected to. Secondly, the amendment of 1995 had not been introduced till that time. Thirdly, the Schedule-I to Regulation 12 was in existence. Still further, even in that case, the Bench did observe that merit takes precedence over other consideration, but certainly it did not hold that seniority and suitability was an irrelevant consideration.
We have already answered, under various heads, the rival contentions raised by learned counsel for the parties. However, we must now also proceed to discuss the contention raised on behalf of the respondents in regard to locus-standi of the petitioner and the limited scope of judicial review in such cases. 24. Locus-standi and scope of judicial review It is an admitted case before us that the name of the petitioner was considered by the recommending as well as the appointing authority. The petitioner is also senior to respondent No. 4. It is also the admitted case of the Institute that the petitioner as well as others were found to be suitable for appointment to the post of Dean. It is only on consideration of alleged merit that respondent No. 4 was appointed to the post. In these circumstances we are unable to sustain the contention that the petitioner has no locus-standi to challenge the selection. In any case, this contention of the respondent need not detain us any further in view of the judgment of the Hon'ble Supreme Court in the case of Dr. A.K.Doshi v. Union of India etc.etc., (2001) 4 Supreme Court Cases 43. where the Court rejecting the objection in regard to locus-standi of the petitioner to file petition, held as under: -
"In our view, on the facts of this case, the contention raised on behalf of the appellant that the 2nd respondent could not challenge the appellant's appointment since he (2nd respondent) had not challenged the rejection of his name by the Appointments Committee, cannot be accepted. Even assuming that the 2nd respondent could have challenged the rejection of his name by the Appointments Committee he would have a cause to challenge the appointment of the appellant who was undisputedly placed below him in the panel drawn up by the Selection Committee."
This contention of the respondents is a double edged weapon and is bound to equally hurt the appointment of respondent No. 4 as well. The petitioner admittedly is not the senior most person, so is not respondent No. 4. Petitioner is not the recommendee of the recommending authority, so was name of respondent No. 4 not recommended by the recommending authority, if the petitioner is taken to be having no locus-standi on these grounds, this by itself, would be sufficient to set aside the appointment of respondent No. 4 as well. As we have already noticed, we do not find the need to discuss this matter with any further elucidation. The proposition of law that scope of judicial review in regard to such matter is a very limited one can hardly be disputed. In the cases of Dalpat Absaheb Slunke v. Dr B.S. Mahajan A.I.R. 1990 Supreme Court 434 and Union of India v. Samar Singh, 1997(1) SCT. 392, the Hon'ble Supreme Court of India held that it is not the function of the Court to hear appeals from decisions of the Selection Committee and to scrutinize the relative merit of the candidates. Whether a person is fit for promotion/appointment or not, has to be decided by the duly constituted committee, which is the expert body, but such a decision has to be free from the vice of discrimination and arbitrariness. The reasoning or the opinion of such expert body can hardly be subject matter of judicial review as the Court is not the appellate forum for such adjudication. However, this rule proceeds of the assumption that the decisions have been taken in consonance with basic rule of law and accepted norms of administrative functioning. The decision must be taken on the basis of the record and should be apparent on the face of the record. Absence of reasoning, record and a selection in violation to the regulation/instructions governing the appointment and as well to the settled canons of service jurisprudence would invite judicial criticism.
25. In view of our detailed discussion above, this writ petition is allowed. The appointment of respondent No. 4 as Dean of Post Graduate Institute of Medical Education and Research, Chandigarh, is hereby set aside. However, in the facts and circumstances of the case, we leave the parties to bear their own costs.