Andhra HC (Pre-Telangana)
Dr. (Mrs.) M. Thaha W/O. Shri A. Thaha, ... vs The Director General, National ... on 28 January, 1992
Equivalent citations: 1992(1)ALT213
ORDER Bhaskar Rao, J.
1. These two writ petitions assail the selection and appointment of Dr. Tarun Bikar Lahiri and Dr. Rajendra Prasad Singh (respondents 3 in both the writ petitions) as Directors made by the National Institute of Rural Development (hereinafter referred to as 'NIRD') on different grounds. Before adverting to the grounds of challenge, I intend to first dispose of the preliminary objection taken by Mr. V.V.S. Rao, the learned counsel for NIRD, that this Court has no jurisdiction under Article 226 of the Constitution of India to entertain the instant writ petitions as NIRD is not a 'State' within the definition of Article 12 of the Constitution of India.
Article 12 of the Constitution reads:
"12. Definition.-In this Part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India."
In this background of the definition, the contention of Mr. V. Venkataramanaiah, the learned counsel for the petitioners is that NIRD is an instrumentality of the a State falling within the expression "other authorities" occurring in the definition extracted supra.
2. The definition of the term 'the State' furnished at the top of Part-Ill covering Fundamental rights is meant to indicate the authorities and instrumentalities functioning within or beyond the territories of India that shall act in conformity with the provisions of Part-Ill of the Constitution. The fundamental rights listed in Part-Ill of the Constitution are immune -from invasion or infringement by any action of the State as defined therein. Inasmuch as ordinary law provides for protection against private action, the Constitution has provided for sufficient protection of the fundamental rights against the might of the State. The whole object of Part-Ill of the Constitution, in the words of Patanjali Sastri, CJ., is to provide protection for the freedoms and rights mentioned therein against arbitrary invasion by the State. Now, the argument of Mr. V.V.S. Rao is that the impugned actions in these writ petitions being by a body not falling within the definition of State as per Article 12, they amount to private actions not amenable to the jurisdiction of this Court under Article 226 of the Constitution.
3. To examine whether the expression 'other authorities' occurring in the definition covers NIRD, it is to be noticed that the Supreme Court in Smt. Ujjambai v. State of U.P., AIR 1962 SC 1621 and Electricity Board, Rajasthan v. Mohan Lal, has rejected the interpretation of the expression 'other authorities' in the background of the doctrine Ejusdem Generis with Government or Legislature on the ground that in Article 12 there is no common genus running through the bodies named therein nor the bodies named could be placed in one single category. Accordingly the Supreme Court held that 'other authorities' cannot be restricted to those exercising governmental or sovereign functions only.
4. The earliest decision on the subject as regards the interpretation of the term 'other authorities' rendered by the Supreme Court is the one in Electricity Board, Rajasthan v. Mohan Lal, . The view taken by the Supreme Court was that 'other authorities' would include all authorities created by the Constitution or statute on whom powers are conferred by law. The Supreme Court also held that 'other authorities' need not necessarily engage themselves in performing governmental or sovereign functions since under Article 298 'State' can also carry on trade or business. Accordingly it held that such bodies as are created for the purpose of promoting the educational and economic interests of the people also come within the purview of 'other authorities'. This decision has virtually over-ruled the earlier view that 'University' is not a 'State' within the meaning of Article 12 since it does not render governmental or sovereign functions. In simple words, the view of the Supreme Court is that the body should be a creature of a Statute or Constitution for falling within the expression 'other authorities', whether or not it discharges governmental or sovereign functions. Deciding the issue, whether Rajasthan Electricity Board falls within the term 'other authorities', the Supreme Court held that the Board is basically a creature of the Statute and the Electricity Supply Act empowers the Board to give directions, the disobedience of which is punishable as a criminal offence, and therefore the Board is a "State' within the meaning of Article 12 of the Constitution.
5. In Sukhdeo Singh v. Bhagat Ram, the issue before the Supreme Court was whether the Oil and Natural Gas Commission, Life Insurance Corporation and Industrial Finance Corporation are 'authorities' within the definition of Article 12. All the three bodies referred to are creatures of statute and empowered to frame rules and regulations. The majority view, therefore, was that all the three bodies are 'other authorities' within the meaning of Article 12. A.N. Ray, C.J., speaking for himself and Chandrachud, J. (as he then was) and Gupta, J., also observed:
"Public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. Such an authority is not precluded from making a profit for the public benefit." (page 1342) After referring to the decision in Rajasthan Electricity Board's case (2 supra,)the Supreme Court held:
"The power to make rules or regulations and to administer or enforce them would be one of the elements of authorities contemplated in Article 12. Authorities envisaged in Article 12 are described as instrumentalities of State action."
Mathew, J., while concurring with the majority view delivered a separate judgment and held:' "A finding of state financial support plus an unusual degree of control over the management and policies might lead one to characterize an operation as State action.
97. Another factor which might be considered is whether the operation is an important public function. The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a state agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence of state financial aid might be irrelevant in making a finding of state action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion."
6. In Ramana Dayaram Shetty v. International Airport authority of India, the question again was whether the International Airport Authority is comprehended by Article 12 of the constitution to hold that it is a 'State'.
Speaking for a three-judge Bench, Bhagwati, J. (as he then was) posed the question, what are the tests to determine whether a corporation established by Statute or incorporated under law is an instrumentality or agency of Government. Adverting to the question so posed, the learned Judge observed: "............It is not possible to formulate an all-inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not."
The learned Judge while holding that it is difficult to distinguish between governmental functions and the non-governmental functions, referred to the views of Mathew, J., expressed in Sukhdev Singh's case (3 supra):
"The contrast is rather between Governmental activities which are private and private activities which are governmental. But the public nature of the function, if impregnated with governmental character or 'tied or entwined with Government' or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government. Specifically if a department of Government is transferred to a corporation it would be a strone factor supportive of this interence."
Ultimately, the learned Judge held that the International Airport Authority falls within the ambit of Article 12. Bhagwati, J. (as he then was) again speaking for a Constitutional Bench in Ajay Hasta v. Khalid Mujib, had no deal with the question, whether the Regional Engineering College, "Srinagar, is an authority within the definition of Article 12. The College was established and managed by a Society registered under the Jammu and Kashmir Registration of Societies Act, 1898. In that context, the learned Judge after gathering the tests from Ramana Dayaram Shetty's case (4 supra) summarised them as under:
(1) "One thing is clear that if the entire share capital is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government."
(2) "Where the financial assistance of the State is so much as to meet almost entire expenditure of the-corporation, it would afford some indication of the corporation, being impregnated with governmental character."
(3) "It may also be a relevant factor..........whether the corporation enjoys monopoly status which is the State conferred or State protected."
(4) "Existence of 'deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality."
(5) "If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of government."
(6) "Specifically, if a department of Govt. is transferred to a corporation, it would be a strong factor supportive of this inference" of the corporation being an instrumentality or agency of Government."
Ultimately in this case also the learned "Judge held that the Engineering College is a State within the meaning of Article 12 of the Constitution of India.
7. P.K. Ramchandra Iyer v. Union of India, is yet another case where the Indian Council of Agricultural Research (ICAR), a Society registered under the Societies/Registration Act and wholly financed by the Government, was held to be an instrumentality of the State.
8. In B.S. Minhas v. Indian Statistical Institute, the Supreme Court was to consider whether the Indian Statistical Institute is an 'authority' within the definition of Article 12. The Institute was a society registered under the Societies Registration Act and governed by the Statistical Institute Act arid therefore, a writ petition challenging the appointment of a Director of the Institute was held to be maintainable.
9. For the first time we have come across bodies like ICAR and Indian Statistical Institute, which are admittedly societies registered under the Societies Registration Act, and which were hold to be 'other authorities' within the definition of Article 12; This view, when confronted with the earlier view expressed in Dhanoa v. Delhi Municipality, viz., the expression 'Corporation' must mean a corporation created by the legislature and not a body or society brought into existence by an act of group of individuals and that a co-operative society is not a corporation for being called as an instrumentality of the State, gives rise to a doubt as regards its correctness; and apprehending this only it is clarified* by the Supreme Court in Central Inland Water Transport Corporation Ltd., v. Brojo Nath, stating that the question, whether a co-operative society is an authority under Article 12 did not arise for decision in DHANOVA's case. The Supreme Court clarified.
"In S.S. Dhanoa's case the Court was not called upon to decide and did not decide whether a Government company was an instrumentality or agency of the State for the purposes of Part-Ill and IV of the Constitution and thus, 'the State' within the meaning of that expression as in Article 12 of the Constitution."
10. Osmania College, Kurnool, was the next institution that was called upon before "this Court to render a decision as to its coverage by Article 12 of the Constitution in Hassan AlI Khan v. Director of Higher Education, 1987 (1) ALT. 378. Earlier, a Division Bench of this Court though held the College to be amenable to writ jurisdiction still in view of a three-Judge Full Bench decision of this Court, to the effect, that even if the institution is held to be a public body writ cannot be issued in the absence of statutory rules governing the institution, a five-Judge Full Bench was constituted to resolve the issue. Examining the question, the five-Judge Full Bench of this Court held in para-8:
"Under Article 12, the essential tests are substantial financial aid, control by Government, performance of public functions and the entrustment of Governmental activities. The full fledged presence of each of the factors is not necessary and the combination of one or other may land in conclusion of label of State. The look and cumulative affect of all aspects is the determinative factor. The financial aid must be substantial but not merely first-aid."
11. In Tekraj Vasandhi v. Union of India, the Supreme Court was required to determine whether the Institute of Constitutional and Parliamentary Studies (ICPS) was State under Article 12. The ICPS was a registered society and financed to a large extent by the Central Government besides through gifts. and donations from the inland and foreign agencies. The objects of the society were to provide for constitutional and promotional studies, promotion of research in constitutional law, setting up of legislative research and reference service for the benefit of legislators, etc. The Supreme Court gave a finding that the ICPC was born as a voluntary organisation and that its objects were not governmental, So finding, the Supreme Court held that the ICPS was not 'State' under Article 12 of the Constitution.
12. The next decision pertaining to Article 12 of the Constitution is in Chander Mohan Kahnna v. The National Council of Educational Research and Training, 1991 (IV) S.V.L.R. (LABOUR) Page 17 wherein the question involved is, whether the National Council of Educational Research and Training (NCERT) is a 'State' within the meaning of Article 12 of the Constitution. Dealing with that issue, the Supreme Court reiterated that the powers, functions, finances and control of the Government are some of the indicating factors to answer the question, whether a body is a 'State' or not.
The Supreme Court pointed out:
"Where the financial assistance from the State is so much as to meet almost entire expenditure of the institution, or the share capital of the corporation is completely held by the government, it would afford some indication of the body being impregnated with governmental character. It may be a relevant factor if the institution or the corporation enjoys monopoly status which is State conferred or State protected. Existence of deep and pervasive State control may afford an indication. If the functions of the institution are of public importance and related to governmental functions, it would also be a relevant factor. These are merely indicative indicia and are by no means conclusive or clinching in any case."
Having regard to these indications and after distinguishing the decision in P.K. Ramachandra Iyer's case (6 supra) where the Supreme Court held that Indian Council for Agricultural Research (ICAR) was 'State' mainly for the reason that ICAR which was originally an attached office of the Government of India did not alter its position when it was registered as a society, the Supreme Court' held that NCERT does not satisfy the requirement of 'State' under Article 12 of the Constitution of India.
13. In this background of the case-law, now turning to the present institution, viz., NIRD, it is to be noticed that this is an autonomous body registered under the Societies Registration Act, 1860 (1350 fasli). After the independence, in June, 1958 the Government of India set up at Mussorie (U.P.) the Central Institute of Study and Research in Community Development. Subsequently in order to impart the necessary training in educational Psychology, teaching techniques, etc., a Trainers Training Institute was established in December, 1958 at Rajpur, Dehradun. After introduction of the Panchayat Raj system in 1959, Trainers Training Institute was renamed as Institute for Instruction in Community Developmenf. In course of time, the Central Institute of Study and Research in Community Development and the Institute for Instruction in Community Development were merged into one by the Government of India by naming it National Institute of Community Development and it was shifted to Hyderabad in 1964. The National Institute of Community Development was established by the Ministry of Community Development and Co-operation. In 1965 the Institution was given the autonomous status and registered as a society on 1st November, 1965. The Institute was fully supported and financed by the Government of India. The Institute is an organisation mainly for training and research in socio-economic changes in Rural India: The Ministry of Community Development and Co-operation is changed into Ministry for Rural Development. Along with this change, the name of this organisation is also changed in 1977 as "National Institute of Rural Development". Thus, it was the Ministry of Community Development and Co-operation that established the Institution in question and later on along with the change in the name of the Ministry the name of the Institution also changed into NIRD, became an autonomous body, registered under the Societies Registration Act and was fully supported and financed by the Government of India. The main function of the Institution (NIRD) is oriented towards the Rural Development, a governmental function. Further, NIRD is an Organisation of the Ministry of Agriculture, Department of Rural Development, Government of India. The President of the Institute is the Minister in-charge of the Ministry/Department. Several Secretaries of other Ministries of the Government of India are the Members of the General Council. The bye-laws of the Institute are framed with the approval of the Government. Thus, the genesis, functions, finance, autonomous status of as also control over the NIRD abundantly manifest that it is an 'authority' within the meaning of 'State' as defined by Article 12 of the Constitution of India, and therefore amenable to the jurisdiction of this Court under Article 226 of the Constitution.
14. NIRD has several Centres and Departments. Consequent upon the vacancies that arose to the posts of Director, 6ne for Micro Planning and another for Economics, there was a notification issued for filling them up by inviting applications from the eligible candidates. The bye-laws framed by the General Council of the NIRD under Rule X (vii) of the Rules provide for recruitment, modes of recruitment, qualifications, probation, termination, etc. Incidentally it may gainfully be borne in mind that 'bye-laws' in substance are regulations made by a corporate or autonomous body to bind not only itself, its officers and servants but also members of public, who come within the sphere of their operation. The function of making bye-laws is one in the nature of sub-delegated legislation since it is the resultant of the powers conferred by a statute or legislation, which itself is made under a statutory power. Now, in response to the notification issued, referred to supra, the petitioners in the two writ petitions had made their applications inasmuch as they are also eligible to so apply as per bye-law 7(3). It is bye-law 7 that provides for 'Methods of Recruitment'. According to that bye-law, NIRD may make recruitment either by (i) direct recruitment or (ii) by promotion or (iii) by borrowal i.e. on deputation. Again under bye-law (8) dealing with 'Direct Recruitment', the appointing authority is empowered to appoint candidates (i) from amongst candidates recommended by the Employment Exchange on requisition or (ii) from amongst candidates applying in response to any advertisement or (iii) by inviting suitable persons. Bye-law (9) provides for recruitment by promotion while bye-law (9) (a) is in respect of borrowed employee.
Now; the contention of Mr. Venkataramanaiah, the learned counsel for the petitioners is that the NIRD did not follow the procedure laid down by the bye-laws in the matter of appointments to the posts of Directors in question since the petitioners having been in service and eligible to hold the said posts on promotion, their cases ought to have been first considered before calling for the applications through the notification referred to supra, and since there is a failure in this regard, the selection of the 3rd respondent in the two Writ petitions is illegal and unsustainable. In substance, the contention of the learned counsel is, the bye-laws have the force of law and are statutory in nature, and therefore any action taken in contravention of the bye-laws is illegal and unsustainable. Mr. V.V.S. Rao, the learned counsel appearing for the NIRD, on the other hand contended that the bye-laws have no statutory force and therefore even if there is any contravention of the same, the same does not invalidate the selections. He further contended that the petitioners cannot make a grievance of the contravention of the bye-laws, even if any, inasmuch as it does not amount to violation of any fundamental right guaranteed under Articles 14 and 16 of the Constitution so as to confer jurisdiction of this Court to have judicial review.
15. The question, therefore, that arises for consideration is, whether the bye-laws made by the NIRD have the statutory forces-or in the alternative-whether the action of the respondent-NIRD even if in violation of the bye-laws is not amenable to judicial review by this Court under Article 226 of the Constitution, in the background of the finding that NIRD is a 'State' being 'an authority' within the definition of Article 12 of the Constitution.
16. It is not in dispute that the bye-laws in question were made and adopted by the General Council of NIRD as per the powers conferred by Rule X (vii) of the Rules of the NIRD and they have also received the approval of the Government of India. Further, as found supra NIRD is a 'State' within the definition of Article 12. In Co-operative Central Bank Ltd., v. Industrial Tribuna, the question that arose before the Supreme Court is whether the bye-laws framed by a Co-operative Society (i.e. Co-operative Credit Bank) in pursuance of the provisions of the Act have the force of law so that any direction made by the Industrial Tribunal altering a condition of service contained in the bye-laws would be an order contrary to law and, hence, illegal. This question having arose in the background that the Co-operative Credit Bank is not a 'State' within the definition of Article 12 of the Constitution is dealt by the Supreme Court in the following lines:
"10. We are unable to accept the submission that the bye-laws of a cooperative society framed in pursuance of the provisions of the Act can be held to be law or to have the force of law. It has no doubt been held that, if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute. That principle, however, does not apply to bye-laws of the nature that a co-operative society is. empowered by the Act to make. The bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society...." (stress supplied) In the instant case, NIRD as has been" found is a 'State' being an 'other authority' within the definition of Article 12 and as per the power conferred by Rule X (vii) of the NIRD Rules, which are admittedly statutory in nature, the bye-laws in question have been made and therefore as per the settled proposition of law referred to and underlined in the above-extracted portion of the Supreme Court's decision, the bye-laws of the NIRD have the statutory force. No doubt, before the Supreme Court the body involved was a co-operative society, which is not a 'State', and therefore it was held therein that the bye-laws framed by the said society have no force of law.
17. Again in Sukhdev Singh's case (3 supra), the question that fell for consideration is, whether the Regulations framed under the Oil and Nature Gas Commission Act, 1959, the Industrial Finance Corporation Act, 1948 and the Life Insurance Corporation Act, 1956 have the force of law. Prefacing its decision in paragraph-12, the Supreme Court observed:
"12. Rules, Regulations, Schemes, Bye-laws, Orders made under statutory powers are all comprised in delegated legislation. The need for delegated legislation is that statutory rules are framed with care and minuteness when the statutory authority making the rules is after the coming into force of the Act in a better position to adapt the act is special circumstances."
Adverting to the characteristics of law, the Supreme Court observed:
"22. Another characteristic of law is its content. Law is a rule of general conduct while administrative instruction relates to particular person. This may be illustrated with reference to regulations under the Acts forming the subject matter of those appeals. The Life Insurance Corporation Act as well as the Industrial Finance Corporation Act confer power on the Corporation to make regulations as to the method of recruitment of employees and the terms and conditions of service of such employees or agents. The Oil and Natural Gas Commission Act under Section 12 states that the functions and terms and conditions of service of employees shall be such as may be provided by regulationsunder the Act. Regulations under the Act 1959 Act provide inter alia the terms and conditions of appointment and scales of pay of the employees of the Commission. The regulations containing the terms and conditions of appointment are imperative. The administrative instruction is the entering into contract with a particular person but the form and content of the contract is perspective and statutory."
18. It is pertinent at this juncture to notice that Rule X (vii) empowering the NIRD to make and adopt bye-laws states that the bye-laws framed shall be with reference to preparation and approval of the budget estimates, the sanctioning of the expenditure, re-appropriation of funds, making and execution of contracts, the investment of the funds of the institute; sale of alteration of such investment, accounts and audit, procedure for appointments of staff, the terms and tenure of appointments, emoluments, terms and conditions governing scholarships, fellowship and deputations, grants-in-aid, research schemes and projects, rules of conduct and other conditions of service of the staff of the Institute."
The Supreme Court went on observing:
"23. The noticeable feature is that these statutory bodies have no free hand in framing the conditions and terms of service of their employees. These statutory bodies are bound to apply the terms and conditions as laid down in the regulations. The statutory bodies are not free to make such terms as they think fit and proper. Regulations prescribe the terms of appointment, conditions of service and procedure for dismissing employees..... .... These regulations are not only binding on the authorities but also on the public."
Again referring to the difference between rules and regulations, the Supreme Court held in paragraph-35 thus:
"35. There is no substantial difference between a rule and a regulation inasmuch as both are Subordinate legislation under powers conferred by the statute. A regulation framed under a statute applies uniform treatment to every one or to all members of same group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are all required by the statute to frame regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard....... This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute."
Finally in paragraph-67, the Supreme Court concluded:
"67. For the foregoing reasons, we hold that the rules and regulations framed by the Oil and Natural Gas Commission, Life Insurance Corporation and the Industrial Finance Corporation have the force of law. The employees of these statutory bodies have a statutory status...."
In view of these two decisions of the Supreme Court and the fact that the NIRD is 'an authority' within the meaning of the definition covered by Article 12, the bye-laws are made and adopted by virtue of the powers conferred by Rule X (vii) of the NIRD Rules, the bye-laws had also received the approval of the Government of India as required and that they lay down the procedure for appointment of staff, the terms and tenure of appointments, emoluments, terms and conditions governing scholarships, rules of conduct and other conditions of service of the staff as envisaged by the empowering rule, I am satisfied in holding that the bye-laws are statutory in nature and they have the force of law.
19. Even if it is otherwise, as observed by His Lordship, Mathew, J., in Sukhdev Singh's case (3 supra), the bye-laws of the NIRD, just as the regulations before the Supreme Court, were made and adopted by the NIRD were intended to be binding upon the NIRD and were the bases on which the employments were made and therefore the principles laid down by Justice Frankfurter in Vitarellt v. Seaton (1959) 359 US 535 at pp. 546-547) as referred to by Mathew, J., would govern the case on hand on all fours. The principles laid down are:
"An executive agency must be rigorously held to the standards by which it professes its action to be judged......Accordingly, if dismissal from service is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed...This judicially evolved rule of administrative law is now firmly established and if I may add, rightly so. He that takes the procedural sword shall perish with that sword....."
No doubt, Mathew, J., was dealing with a Corporation created by a statute. But there could be no distinction between a corporation created by a statute and another created under a statute as long as both are treated as 'State' under Article 12 since both are subject to Article 14, which is the sworn enemy of arbitrary action and prohibits discrimination. It is pertinent to notice at this juncture the observations made by the Supreme Court in U.P. Ware Housing Corporation v. Vijay Narayan, to the effect.
"Some element of public employment is all that is necessary to take the employee beyond the reach of the rule which denies his access to a Court to enforce a contract of employment and denies him the protection of Articles 14 and 16 of the Constitution. After all employment in the public sector has grown to vast dimensions and employees in the public sector often discharge as onerous duties as civil servants and participate in activities vital to the country's economy.....It is, therefore, but right that the independence and integrity of those employed in the public sector should be secured as much as the independence and integrity of civil servants...."
Again in Ramana's case (4 supra), Bhagwati, J., observed:
'It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe these standards on pain of invalidation of an act in violation of them......"
The learned Judge further observed:
"It may be noted that this rule (principle enunciated by Justice Frankfurter as quoted above), though supportable also as emanating from Article 14, does not merely rest on that Article. It has an independent existence apart from Article 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority..."
It is, thus, clear from the above decisions of the Supreme Court that the actions of the authorities need not necessarily have their source traceable to statutory provisions, may be rules, regulations or bye-laws, whatever name they are called, for being subjected to judicial review of this Court under Article 226 of the Constitution but it is enough if the employment is public in nature and if the authorities make any deviation from the standards approved by the so called rules, regulations, bye-laws, etc. by which they profess their actions to be judged, the said actions are bound to be pronounced invalid.
20. Further, question similar to the one on hand was the subject matter of consideration by this Court in Writ Petition Nos. 106 and 107 of 1983 disposed of on 8th November, 1983. The question there was:
".........if in a given case the Rules relating to conduct of enquiries or other service matters are not followed, or are violated, is the employee of such a Corporation entitled to complain of violation of the guarantee enshrined in Articles 14 and 16 of the Constitution, and whether orders passed without following, or by violating such regulations can be said to be arbitrary and inherently discriminatory, so as to attract Articles 14 and 167"' Jeevan Reddy, J., as he then was, after referring to the decisions of the Supreme Court in Sukhdev Singh's case (3 supra) U.P. Warehousing Corporation's case and also the principles laid down by Justice Frank Furter, and after examining the issue from the angle of fundamental rights enshrined in Part III of the Constitution as also in the light of the administrative law, concluded that the Corporations are bound to follow the regulations/rules/bye-laws, etc., framed by them.
21. This decision of Jeevan Reddy, J., has further received the approval of a Full Bench of this Court in Sri Konaseema Co.op. Central Bank Ltd., v. Seetharama Raju, AIR 1990 A.P. 171. The Full Bench held:
"If a particular co-operative society can be characterised as a 'State' within the meaning of Art 12 of the Constitution (applying the tests evolved by the Supreme court in. that behalf) it would also be an 'authority' within the meaning, and for the purpose of Article 226 of the Constitution. In such a situation, an order passed by Society against its employees in violation of the bye-laws, can be corrected by way of a writ petition. This is not because the bye-laws have the force of law, but on the ground that having framed the bye-laws prescribing the service conditions of its employees, the Society must follow them, in the interest of fairness. If it is left to" the sweet will and pleasure of the society either to follow or not follow the bye-laws, it would be inherently arbitrary, and may very likely give rise to discriminatory treatment. A society, which is a 'State' has to act in conformity with Art 14, and for that reason, it will be made to follow the bye-laws."
In view of these clear pronouncements of the Supreme Court as also of a Full Bench of this Court, I am inclined to hold that the bye-laws made and adopted by the NIRD have the force of law, and even if it is otherwise for any reason, the action of the respondent-which is a 'State' within the meaning of Art 12, NIRD if found to be in violation of the bye-laws, is liable to be struck down on the ground that the action is in violation of the principles of fairness inasmuch as the NIRD having framed the bye-laws is bound to follow them: and for this purpose to arrive at a finding as regards the violation of the bye-laws or otherwise the action of the respondent-NIRD is amenable to the Judicial review by this Court under Article 226 of the Constitution.
22. Now, entering into the arena of merits, the first ground of attack against the impugned process of selection to the posts of Director (Centre for Micro Planning) and Director (Economics) is that the Committee on Administration, which is the Selection Committee, did not have the required quorum while interviewing the candidates and therefore the very basis of selection is illegal and unlawful. The learned counsel for the petitioners took me through the Rules of the National Institute of Rural Development. According to Rule-X in, there shall be two committees, namely, (i) The Committee on Administration and (ii) the Academic Committee. Rule XHI (b) provides for the composition of the Committees. We are in these writ petitions concerned with Committee on Administration. The Committee on Administration, as per Rule XIII (b) consists of 6 members including the Chairman. The Director General of the Institute (NIRD) shall be the Chairman. The members are stated thus:
"(i) The Dire:*;). General of Institute-Chairman,
(ii) Joint Secretary to the Government of India in the Ministry of Rural Development dealing with the Institute or his nominee not below the rank of Dy -Secretary-Member,
(iii) Joint Secretary (Finance)'and Financial Adviser in the Ministry of Rural Development, Govt. of India or his nominee not below the rank of Dy. Secretary-Member.
(iv) Three persons from among the members of the Executive Committee to be nominated by the Executive Council for such term as may be fixed by the Executive Council but not exceeding 3 years-Members.
The Chairman shall have the power to co-opt as Member, such person or persons as may be necessary.
(v) Every meeting of the Committee on Administration shall be presided over by the Chairman (Director General).
(vi) Four members of the Committee on Administration which shall include the representative of the Ministry of Rural Development (vide (ii) & (iii) above) shall constitute the quorum."
23. Rule XVI embowers the Committee on Administration to deal with matters relating to appointment, administration and finance, Selection and making recommendations for appointments or selection and appointments to posts in different categories in Group-A, except that of the Director General, is a matter to be dealt with by the Committee on Administration.
24. Answering the contention of Mr. Venkataramanaiah, the learned counsel for the petitioners, that the selection is illegal for want of quorum, Mr. V.VS. Rao submitted that the petitioners having knowledge of the constitution of the Committee and having participated in the interview before that Committee are estopped from questioning the valid constitution or otherwise of the Committee. In this regard, the learned counsel sought to rely upon certain decisions of the Supreme Court. In G. Sarma v. Lucknow University, the Supreme Court considering a situation more or less similar to the present one held:
"Where a candidate for selection knowing fully well the relevant facts about the members of the Selection Board voluntarily appeared for interview, without raising any kind of objection against the constitution of the Selection Board and took a chance of favourable recommendation in his favour, it was not open to him to turn round and question the constitution of the Board when the decision was unfavourable to him."
25. In Manak Lal v. Prem Chand, where in more or less similar circumstances it was held that the failure of the appellant to take the identical plea, viz., that the Committee is not validly constituted, at the earliest stage of the proceedings, created an effective bar of waiver against him. There, the Supreme Court observed:
"It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."
*the matters on hand, in so far as the post of Director (Centre for Micro Planning) is concerned the vacancy was advertised in December '88 to which the petitioner (W.P. 13270/89) had made his application as an internal candidate and also appeared for the interview on 22-6-1989. So much so, for the post of Director (Economics) the petitioner in the other writ petition having put inlus application as an internal candidate had appeared for the interview therefor on 18-9-1989. Thus, the petitioners in both the writ petitions had participated in the process of recruitment, appeared for the interviews and had taken a chance of favourable recommendation in their favour. Therefore, as held by the Supreme Court, it is not open to them to now turn round and assail the constitution of the Selection Committee.
26. At this juncture, Mr. Venkataramanaiah contended that where there is inherent lack of jurisdiction due to invalid constitution of the Committee, question of estoppel does not arise, and for this proposition of law he sought to rely upon a decision of the Supreme Court in Chief Justice of A.P. v. Dikshitulu, . There, the Supreme Court held:
"Where the decision of Tribunal is challenged on a pure question of law depending upon interpretation of a constitutional provision, which if upheld, would make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction, the decision cannot be sustained by invoking the doctrine either of res judicata or estoppel."
27. In Olga Tellis v. Bombay Municipal Corporation, the facts disclose that in an earlier round of litigation the petitioners gave an undertaking, agreeing inter alia to vacate the huts on or before October 15,1981 and not to obstruct the public authorities from demolishing them after 15-10-81. The learned counsel appearing for the State responded by means of an undertaking that until 15-10-81 no hut would be demolished. In this background of the undertakings, the Municipal Corporation sought to contend that since the petitioners conceded that they did not claim any fundamental right to put up the huts on the pavements or public roads and since had also given the undertaking referred to, they are estopped from contending in the Court that the huts constructed by them on the pavements cannot be demolished because of their right to livelihood, which is comprehended within the fundamental right to life guaranteed by Article 21 of the Constitution. Dealing with this contention, the Supreme Court held:
"The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bonafides in day-to-day transactions. In Basheshwar Nath v. Commr. of Income-tax, Delhi a Constitution Bench of this Court considered the question whether the fundmental rights conferred by the Constitution can be waived. Two members of the Bench (Das C.J., and Kapoor, J.,) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N.H. Bhagwati and Subba Rao, JJ) held that not only could there be no waiver of the right conferred by Article 14, but mere could be no waiver of any other fundamental right guaranteed by Part III of the Constitution.
The Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy.
We, must, therefore, reject the preliminary objection and proceed to consider the validity of the petitioners' contentions on merits."
There is no dispute with these established principles of law. But the question still remains is, whether or not there is inherent lack of jurisdiction in the Selection Committee as was constituted at the time of holding the interviews to the candidates.
28. Adverting to the issue as regards the satisfaction of quorum so as to consider the major question as regards the inherent lack of jurisdiction, it is to be noticed that Rule XIII (b) of the NIRD Rules provides that the Committee on Administration shall consist of six members, among whom the Chairman (Director General of the Institute) shall be one besides two representatives from the Ministry of Rural Development and three persons from among the members of the Executive Committee. The Rule further provides that Four Members of the Committee on Administration, which shall include the representative of the. Ministry of Rural Development shall constitute the quorum. Presence of one representative from the Ministry, therefore, is mandatory for constitution of the required quorum. The words used in rule XIII (b) (iv) are "which shall include the representative of the Ministry....". It is 'representative' single in number and not 'representatives'. It is an established principle of interpretation of statutes that words used in a particular statute have to be mainly interpreted by giving them the grammatical meaning. It is not in dispute in the instant matters that one representative of the Ministry was present in the Committee. Therefore, the contention that there should have been two representative of the Ministry that should have necessarily been present in the Committee to constitute the quorum required is devoid of any substance.
29. The next contention of the learned, counsel for the petitioners is that all the three members from the Executive Committee as envisaged by Rule XIII(b)(iv) should have been present in the Committee. As noted supra when the quorum prescribed is Tour Members' as per Rule XII(b)(vi) and as long as atleast one representative of the Ministry is present besides three other members, not necessarily from among the Executive Committee, the quorum envisaged is satisfied. In the instant matters besides one representative from the Ministry, the Director-General as Chairman, there were two more members present making a total of Tour' and constituted the Selection Committee (Committee on Administration). Thus, the quorum contemplated is satisfied and accordingly the Committee is properly constituted. Consequently it cannot be said that on the ground of insufficient members or invalid constitution there is inherent lack of jurisdiction in the Selection Committee constituted rendering the process of selection vitiated or void.
30. I may proceed to examine Whether in fact the bye-laws framed provide a priority to promotions over-direct recruitment so as to enable consideration of the cases of the petitioners first for promotion to the post of Directors before a resort to direct recruitment is made. As noticed already supra, bye-law No.7 provides for 'Methods of Recruitment. They are appointment by (i) direct recruitment, (ii) by promotion and (iii) by appointment of a borrowed employee. While bye-law (8) deals with 'direct recruitment, bye-law No.9 provides for promotion. Bye-law No. 9 while providing that promotion shall be either in a substantive or officiating capacity, does nowhere speak of any priority over or in preference to direct recruitment The learned counsel for the petitioners is also not able to bring to my notice any bye-law or rule obliging the respondent - NERD to first consider the cases for promotion and then only take up the method of direct recruitment In this view of the matter. I find no substance in the contention of Mr. Venkataramaniah that there is a failure on the part of the NIRD in following the procedure laid down by the bye-laws in the matter of appointments to the post of Directors inasmuch as the case of the petitioners was not considered for promotion before proceeding for direct recruitment. In any event of the. matter, it is the admitted case of the petitioners that they have been officiating, having been so appointed, as Directors.
31. It is also contended by Mr. Venkataramanaiah that the appointment of the 3rd respondent in W.P.13270/89 on deputation is an action in patent violation of the process of selection inasmuch as the. notification issued calling for the applications is only for appointments by means of direct recruitment and not for deputation. Firstly, the argument does not would well in the face of the contents of the notification. The notification while advertising requirement of Directors for the faculties in question, prescribed the qualifications therefore, and also recited:
"Deputation from Govt. Departments/Organisations Universities and other Institutions will be considered."
It is, thus, manifest from the notification that it also takes-in the method of recruitment by Deputation apart from direct-recruitment. That apart bye-law No.(8) dealing with 'Direct Recruitment authorises the appointing authority to make appointments to any post by direct recruitment apart from the candidates applying in response to any advertisement but also by inviting suitable persons as noted supra. I, therefore, find no substance in this submission of the learned counsel.
32. At this juncture, the learned counsel also sought to contend that the 3rd respondent in W.P.13270/89 was not working in Government Departments/Organisations or universities, but was the Registrar of Viswa Bharathi University, Santhiniketan, and therefore is not one envisaged by the notification issued. It is to be noted that the notification invites applications even from those working in 'other Institutions' and therefore the contention is a mere misconception of the actual factual position.
33. The learned counsel, Sri Venkataramanaiah, lastly took me through the respective merits of the petitioners as against the 3rd respondent in each of the two writ petitions, and sought to contend that a fair appraisal of the merits would indicate comparatively a favourable and preferable leanings towards the petitioners.
34. Coming to the petitioner in W.P.13270/89, she is a Gold-Medalist in M.A. (Geography), acquired Ph.D., and a Post-Graduate Diploma-Holder in Specialisation in Urban and Regional Planning from the School of Planning, New Delhi. She was also officiating as Director (C.M.P.) since 10-11-1988 having put-in a service of 12 years in the post of Deputy Director. She also had put-in her application to the post advertised though the notification referred to supra. The contention of the learned counsel is that while the notification besides the qualifications has prescribed '10' years experience in Research & Training the selection made on deputation of the 3rd respondent ignores this prescribed experience inasmuch as the 3rd respondent did not have that experience. It is to be noticed that the respondent NIRD denied the allegation that the 3rd respondent did not have the required period of experience. It is also stated in the counter that the case of the petitioner was considered and found her to be not suitable. It is also stated that after selection of the 3rd respondent pursuant to the interviews conducted by the expert body, for being, appointed to the post" of Director (CMP), the 3rd respondent was given the option even for being taken-in on deputation basis and since he so opted, the appointment was made accordingly.
35. In so far as the other Writ Petition 4812/90, is concerned, the petitioner therein was working as a Deputy Director in NIRD since August, 1981. He applied for the post of Director (Economics) in response to the advertisement in question as an internal candidate. He was in fact holding additional charge of the post of Director (Economics) since June, 1988. He is a First Class Post-Graduate in Arts (Economics) and acquired Ph.D. in Economics from Andhra University. He was awarded 'Sir Raghupathi Venkatratnam Naidu' Medal for his thesis. He was also awarded the world prestigeous U.S. Govt. Senior 'Fulbright' Fellowship for post-doctoral research in Economics in the USA in 1979-80. Besides teaching and research experience at the Post Graduate (M.A., M.Phil, and Ph.D.), he also had research and training experience at NERD for over eight years. Pursuant to the interviews held on 18-9-1989, the Selection Committee of the NIRD provisionally selected three candidates, the petitioner the 3rd respondent and another, for presentation (lecture sessions) and after the lecture sessions the 3rd respondent alone was recommended for appointment. The Executive Council having approved the appointment of the 3rd respondent issued the order of appointment on 16th February, 1990. The appointment of the 3rd respondent is sought to be challenged on the ground that he also did not have the 10 years experience in Research and Training in Economics, and that he is a 2nd Class Master's Degree holder as against the petitioner's 1st Class Post-Graduation, and that due weightage was not given for the petitioner's long service in the NIRD. It is not the case of the petitioner that the 3rd respondent is not qualified as per the qualifications prescribed, since the notification prescribes a minimum qualification of First or High Second Class Master's Degree with Ph.D. in the relevant Discipline. The allegation that the 3rd respondent did not have the prescribed experience of 10 years is denied by the respondent-NIRD. Apart from all this, the contention of Mr. V.V.S. Rao is that this Court while exercising powers under Article 226 of the Constitution cannot scrutinise the merits and de-merits of the candidates that competed for the selection by acting as an appellate authority. For this purpose, the learned counsel also sought to place reliance upon a number of decisions of the Supreme Court. In B.S. Minhas v. Indian Stastical Institute, the Supreme Court held:
"....it is not for the Court to determine who is the superior of the two candidates and who should be selected. It is for the authorities concerned to select from amongst the available candidates. The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant considerations before coming to a conclusion."
To the same effect is another decision of the Supreme Court in Dalpat Abasaheb Solunke v. B.S. Mahajan, . There also it is held that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates, that the question whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee, which has the expertise on the subject and that the Court has no such expertise. To the same effect are the decisions of the Supreme Court in Neelima Misra v. Harinder Kaur Paintal, and S.S. Sodhi v. State of Punjab, .
36. In view of this settled proposition of law, I cannot go into the relative or comparative merits or demerits of the petitioners and the 3rd respondent in the two writ petitions for purposes of selection to the appointment of Directors.
37. For the foregoing reasons, both the writ petitions are devoid of any merit and are accordingly dismissed. However, this order does not in any way stand in the way of the respondent-authorities (NIRD) in considering, if they so choose, the cases of the petitioners for promotion to the post of Directors. In the circumstances, I make ncf order as to costs.