Karnataka High Court
Dr. Vijayalakshmi Ravindranath vs National Institute Of Mental Health And ... on 22 March, 1999
Equivalent citations: 2000(1)KARLJ330
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER
1. Terminer Sans Oyer!", there was determination without hearing, was the plea of learned Counsel for contesting respondent. That is how my earlier order dated 11-3-1999 was recalled. Long arguments had to be gone through over again. Strange but it is true.
2. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. The reasons assure an in-built support to the conclusion and the decision reached. Fair play requires recording of germane and relevant precise reasons, when an order affects the right of a citizen or a person irrespective of the fact, whether it is quasi-judicial or administrative. It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under Article 227 or the appellate jurisdiction of the Supreme Court under Article 136 of the Constitution of India, to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person. Any action, decision or order of any statutory or public authority functionary bereft of reasoning would be arbitrary, unfair and unjust, violating Article 14 of the Constitution. Reliance is placed on the observations made by the Apex Court in the case of Krishna Swami v Union of India and Others. This is the only contention of learned Counsel for petitioner in the aid of the relief in the writ petition.
3. This well-settled legal principle was faithfully adopted by this Court, while disposing off the petition by its order dated 11-3-1999, but, thereafter, the learned Counsel brings to the notice of this Court the law laid down by Supreme Court in the case of National Institute of Mental Health and Neuro Sciences, Bangalore v Dr. K. Kalyana Raman and Others, and submits that one of the basic principles of the administration of justice is that, like cases should be decided alike and therefore, requests this Court to apply the law laid down in the aforesaid case and reject the writ petition.
4. The Great Justice Cardozo in his book The Nature of Judicial Process (1966), page 113, has observed:
"One of the basic principles of the administration of justice is that like cases should be decided alike. Almost in every jurisdiction, a Judge tends to decide a case in the same way as that in which a similar case has been decided by another Judge(s). The first thing he does is to compare the case before him with the previous decision of the same Court or of the Higher Court decided in the same circumstances, if they are plain and to the point, there may be need for nothing more but to apply the law laid down in that case. It is a process of search, comparison business of the Judge begins. He has to fashion law for the litigants before him. In doing so, he will be fashioning it for others, who will fit in the same circumstances. Thus, it becomes guide for potential similar judgments as every judgment has a directive force for further cases of the same or similar nature".
5. The written words have meaning and how well they fit into the present case when the law is clearly and fully laid down in a binding rule, whether legislatively or through binding precedents, the task is comparatively easy. All one has to do is to apply the rule binding on himself. A binding precedent also compels the Judge for he must bow before it, whatever his own opinions are.
6. Keeping this in my mind, let me now notice, the law declared by Supreme Court in the case of Dr. K. Kalyana Raman, supra. The Court was pleased to observe:
"7. We will first consider the second point. In the first place, it must be noted that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. The High Court seems to be in error in stating that the Selection Committee ought to have given some reasons for preferring Dr. Gauri Devi as against the other candidate. The selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility. There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without reasons cannot be found fault with. The High Court in support of its reasoning has, however, referred to the decision of this Court in Union of India v Mohan Lal Capoor. That decision proceeded on a statutory requirement. Regulation 5(5) which was considered in that case required that Selection Committee to record its reasons for superseding a senior member in the State Civil Service. The decision in Capoor case was rendered on 26th September, 1973. In June 1977, Regulation 5(5) was amended deleting the requirement of recording reasons for the supersession of senior officers of the State Civil Services. The Capoor case cannot therefore, be construed as an authority for the proposition that there should be reasons formulated for administrative decision. Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principle of natural justice does not require an administrative authority or a Selection Committee or the examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R.S. Dass v Union of India and Others , in which Capoor case was also distinguished.
8. As to the first point we may state at the outset that giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The 'fairness' or 'fair procedure' in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on record to suggest that the Selection Committee did anything to the contrary. The High Court however, observed, that Dr. Kalyana Raman did not receive a fair and reasonable consideration by the Selection Committee. The inference in this regard has been drawn by the High Court from the statement of objections dated 18-2-1980 filed on behalf of the Selection Committee. It appears that the Selection Committee took the stand that Dr. Kalyana Raman did not satisfy the minimum requirement of experience and was not eligible for selection. The High Court went on to state that it was somewhat extraordinary for the Selection Committee after calling him for the interview and selecting him for the post by placing him second, should have stated that he did not satisfy the minimum qualifications prescribed for eligibility. According to the High Court the stand taken by the Selection Committee raises serious doubts as to whether the deliberations of the Selection Committee were such as to inspire confidence and re-assurance as to the related equality and justness of an effective consideration of this case. It is true that selection of the petitioner and the stand taken by the Selection Committee before the High Court that he was not eligible at all are, indeed, antithetical and cannot co-exist. But, the fact remains that the case of Dr. Kalyana Raman was considered and he was placed second in the panel of names. It is not shown that the selection was arbitrary or whimsical or the Selection Committee did not act fairly towards Dr. Kalyana Raman. The fact that he was placed second in the panel, itself indicates that there was proper consideration of his case and he has been treated fairly. It should not be lost sight of that the Selection Committee consisted of experts in the subject for selection. They were men of high status and also of unquestionable impartiality. The Court should be slow to interfere with their opinion".
7. Let me now very briefly notice the factual matrix in the present case. The renowned National Institute of Mental Health and Neuro Sciences (hereinafter referred to as 'Institute') invited applications through notifications dated 9-1-1996 for the post of Professor of Neuro-chemistry, prescribing qualification of First or Second Class M.A./M.Sc. degree in Biochemistry/Chemistry with Biochemistry and Ph.D/D.Sc. in Medical Biochemistry. Petitioner, 4th respondent and one other candidate had applied for the post. The Selection Committee constituted for selection of the candidate for the post advertised, after interviewing petitioner and the 4th respondent had recommended the name of the 4th respondent for appointment to the post of Professor of Neuro Surgery and the petitioner was placed in the waiting list. The learned Counsel for the Institute has placed the records maintained by the Selection Committee, while selecting the person to the post advertised. The recommendation of the Selection Committee dated 25-10-1996 is as under:
"Ref: NIMH/PER(5)/RECT/PROF/96-97 Dated 25-10-1996 Proceedings of the Selection Committee for selection of candidate for the post of Professor of Neurochemistry held on 25-10-1096 at 2.00 p.m. at NIMHANS, Bangalore.
Number of candidates called for Interview:
:02
Number of candidates attended the interview:
:02
Number of Posts:
:01
The Selection Committee interviewed all the candidates who have appeared for interview. The Committee verified the qualifications possessed by each candidate, research experience and number of publications in the respective field with reference to qualifications prescribed for the aforesaid post as per Cadre and Recruitment Rules. The Selection Committee after considering the requirements mentioned above and on the basis of the performance at interview make the following recommendation:
Sl. No. Name of the candidate Remarks
1.
Dr. Taranath Setty Recommended for selection Waiting List:
1.
Dr. Vijayalakshmi Ravindranath Sd/-
(Dr. S.M. Channabasavanna) Chairman Sd/-
(Dr. A.S. Balasubramanyam) Member Sd/-
(Dr. S.D. Telang) Member Sd/-
(Dr. Veerabasappa Gowda) Member Sd/-
(Shri M.B. Dyaberi) Member-Secretary".
8. The unsuccessful applicant is before this Court inter alia questioning the selection and the appointment of 4th respondent to the post of Professor of Neurochemistry in a petition filed under Article 226 of the Constitution, being aggrieved by the action of the Institute.
9. The learned Counsel for the petitioner submits that procedural fairness is not established and proved by the Institute with reference to its records, therefore the action taken by the institute cannot be upheld, and has to be struck down as arbitrary, unfair, unjust and violative of Article 14 of the Constitution. It is further stated that procedure means "fair and reasonable procedure" and not formal procedure and any action which is not taken after following this procedure cannot be upheld. Secondly, it is contended that the reasons being harbinger between the mind of the maker of the order to the controversy in question, since the same is not recorded by the Selection Committee, the selection process deserves to be declared as unfair procedure. In support of these two contentions, the learned Counsel relies upon the observation of the Apex Court in the case of R.S. Dass, supra, State of Rajasthan v Sriram Verma and Another, Sarat Kumar Dash and Others v Biswajit Patnaik and Others, and lastly the observation made by Apex Court on the same decision on which strong reliance is placed by the learned Counsel for the contesting respondent viz., National Institute of Mental Health and Neuro Sciences case, supra.
10. The learned Counsel for contesting respondent strongly urges that this Court while exercising its discretionary jurisdiction and exercising the power of judicial review under Article 226 of the Constitution, cannot peep into files of the Selection Committee for disturbing the recommendation of the Selection Committee. In support of this contention, the learned Counsel relies upon the observations made by the Supreme Court in the case of Union of India v Samar Singh and Others . Secondly, it is contended that this Court exercising its power of judicial review can annul the selection made by the Selection Committee consisting of experts and academicians, only if there is patent irregularity in the constitution of the Selection Committee, proved mala fides affecting the selection and lastly, if the procedure adopted is unfair and unjust vitiating the entire selection process, In support of this contention, the learned Counsel strongly relies upon the observations made by the Apex Court in the case of Berhampur University and Another v Dr. Sailabala Padhi, Kuldip Chand v State of Himachal Pradesh and Others, Siya Ram v Union of India and Others , Dalpat Abasaheb Solunke and Others v Dr. B.S. Mahajan and Others, Dr. Krishna Chandra Sahu and Others v State of Orissa and Others and lastly, the observations made by the Apex Court in Dr. K. Kalyana Raman's case, supra. The third limb of the argument canvassed is that, the party who had participated in the selection process cannot complain not only of the constitution of the Selection Committee but also the selection process. In other words, having participated in the selection process, the person loses all his/her rights to question the selection process of the Selection Committee. In support of this contention, the learned Counsel relied upon the observations made by the Supreme Court in the case of University of Cochin v N.S. Kanjoonjamma and Others and Madan Lal and Others v State of Jammu and Kashmir and Others. Ultimately, requests this Court to sustain the action of the Selection Committee in recommending the name of 4th respondent to the selection post.
11. Sri Lakshminarayana Reddy, learned Counsel for respondent-Institute, ably justifies the action of the Institute in selecting and appointing 4th respondent to the post advertised and further submits that comparative merit of the candidates, who had participated in the selection process was taken into consideration by the Selection Committee and since 4th respondent was fully fit and eligible and possessed the requisite qualification, the Selection Committee had recommended the name of the 4th respondent for appointment to the post advertised and basing on such recommendation, by an order dated 24-3-1997, 4th respondent was appointed to the post of Professor in Neurochemistry and lastly, submits that the action of the respondent-Institute is wholly in accordance with law and in accordance with the observations made by the Apex Court in Dr. Kalyana Raman's case, supra.
12. After careful consideration of the legal issues canvassed by the learned Counsels for the parties to the lis, I am of the opinion that the petitioner has not made out a case for interference of this Court, for the reasons, that a Bench of this Court in the case of K.B. Nagendra v S.P. Raghunath and Another, while applying the law laid down by Supreme Court in the case of National Institute of Mental Health and Neuro Sciences, supra, was pleased to observe as under:
"13. From the record it appears that after the post of the Chief Manager fell vacant the Board of the Corporation resolved to fill-up the said post by promotion from amongst the eligible Deputy Chief Managers of the C and M Section in accordance with Cadre and Recruitment Rules of the Corporation. The committee comprising of the Managing Director and Sri N.M. Nabi, Director, as also the Chairman of the Company was constituted to scrutinise the Confidential Reports and other relevant papers for consideration for grant of promotion to the post of Chief Manager (C and M) from amongst eligible Deputy Chief Managers of C and M Section. After considering the relevant record of all the eligible Deputy Chief Managers (C and M) the Committee submitted in its report dated 3-7-1995 its recommendations upon the basis of which the impugned order at Annexure-J was issued promoting the appellant to the post of Chief Manager (C and M) in the pay scale of Rs. 3825-125-4700-150-5300-175-5825, until further order with the conditions specified therein. The observation of the learned Single Judge that as the committee had not considered the comparative financial and administrative performance of the person eligible for promotion, the promotion of the appellant was liable to be quashed, cannot be accepted for two reasons;
1. Firstly, that this Court while exercising the powers under Article 226 of the Constitution of India, cannot substitute its opinion by peeping into the files and ignoring the claim of the employer regarding observance of the rules. Once the promotion process is in accordance with rule and is not motivated by any extraneous consideration, the mere fact that any other conclusion or finding was possible, cannot be made a basis for disturbing or setting aside the report of the Committee entrusted with the process of making selection on the basis of comparative merit of all eligible candidates. Non-consideration of the case has to be distinguished from improper considerations. Improper consideration may be a ground to set aside the action in appeal but cannot be the basis for quashing the action in exercise of writ jurisdiction unless the violation is fragrant and apparent on the face of the record.
2. Secondly, such a consideration regarding comparative merit with regard to financial and administrative performance was assumed to be in existence by force of Rule 13 of the Rules. In the earlier part of this judgment it has already been held that Rule 13 was not applicable in the case of promotion of Chief Managers. The overall service record of all the eligible candidates was required to be scrutinised by the Committee appointed for the purpose and if such record is shown to have perused before making the recommendation, the Court cannot interfere in exercise of its writ jurisdiction".
The learned Single Judge though noted the judgment of Supreme Court in Dr. K. Kalyana Raman's case, supra, yet failed to take note of the law laid down therein. The Supreme Court has unambiguously held that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. If the selection is shown to have been made by the assessment of the relevant merits of the rival candidates possessing the required eligibility, the Court would not interfere. The Selection Committee is not required to record reasons unless specifically provided for by the rules. It further held:
"Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R.S. Dass case, supra.
13. In my view, in matters of the present nature, the parameters laid down by the Apex Court in Nimhans case, supra, and this Court in KB. Nagendra's case, supra, requires to be strictly followed and there is no scope for discretion at all. Therefore, I intend to stand by things decided, rather than to introduce conflicts and inconsistencies, so that the law declared by higher forum is not fluctuated from Judge to Judge and from case to case.
14. Briefly in my opinion, the fact situation in Dr. Kalyana Raman's case, supra, is identical in almost all respects to the fact situation pleaded in the present case. Accordingly, in my view, reference to other decisions by the learned Counsels for the parties may not be necessary at all. Therefore, since the selection of the 4th respondent is made after relative assessment of both the candidates, who were called for interview, the Selection Committee was not obliged to record any reason for such selection since rules or regulations of the Institute do not provide for the same. Secondly, petitioner nor her learned Counsel has pleaded any one of the exceptional circumstances noticed by the Apex Court in Kuldip Chand's case, supra, for this Court to exercise its extraordinary jurisdiction while exercising the power of judicial review under Article 226 of the Constitution. Lastly, it is not the case of the petitioner's learned Counsel that the decision of the Selection Committee was influenced either by extraneous or irrelevant consideration. Therefore, it cannot be said that the Selection Committee has not observed fair procedure during the selection process for selecting and recommending the name of the 4th respondent for the post advertised. The Selection Committee in the instant case had interviewed all the candidates, who appeared for the interview and after verification of the qualification possessed by each candidate, research experience etc., and on the basis of the performance at interview, has recommended the name of the 4th respondent for appointment to the selection post. Therefore, it is difficult to take any exception to the selection procedure adopted.
15. In the result, petition is dismissed. Rule discharged. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.