Judgment:
N. Kumar, J.
1. The appellant has challenged in this writ appeal the order passed by the learned Single Judge upholding the appointment of the 3rd respondent as Director of Indira Gandhi Institute of Child Health, Bangalore.
2. The Indira Gandhi Institute of Child Health, Bangalore, the 4th respondent in this appeal, is a society registered under the provisions of the Karnataka Societies Registration Act, 1960 (hereinafter referred to as 'the Institute'). It is established to promote, establish, maintain and develop an institute for child health with a view to provide relief and treatment and advanced care to children and to encourage and promote research and training in child health and for such other purposes. It is an autonomous institute and its registered office is at South Hospital Complex, Dharmaram College Post, Near NIMHANS, Bangalore 29. The administration of the institute is vested with the Governing Council consisting 12 members. The minister for Health and Family Welfare, Government of Karnataka and the Mayor of the City Corporation of Bangalore are patrons of the institute. The institute has framed its own Rules and Regulations. It has also framed General Bye laws by virtue of the power conferred under Rule 13(3) and (4)(b) of the Rules. Under the General Bye laws, the appointing authority in respect of the post of Director, is the Governing Council. The Governing Council means the Governing Council of Indira Gandhi Institute of Child Health, Bangalore. The Bye laws provide for constitution of Selection Committee to make recommendations to the Appointing Authority for recruitment to the various posts in the Institute. The Selection Committee for the post of Director consists of the Chairman of the Governing Council who is also the Chairman of the Selection Committee, the Vice-chairman of the Governing Council, the Director of Medical Education, two experts in the concerned subject to be nominated by the Governing Council and the Director, IGICH, where Director himself is not a candidate. The Selection Committee shall decide its own procedure for conducting the selection. It shall prepare a panel of names in the order of merit.
3. The Institute issued a notification dated 29.11.2006 as per Annexure G inviting applications from the eligible candidates in the prescribed form to fill up the post of Director in the Institute. The notification clearly stated the number of post, as one, and it is an unreserved post. In response to the aforesaid advertisement, 7 candidates including the appellant and the 3rd respondent submitted their applications. Their applications were scrutinised. Only 6 out of 7 applicants were found to be eligible. As per Clause 12(4) of the General Byelaws of the Institute and Clause 13 of the notification, the selection committee shall decide its own procedure for conducting selection and to prepare a panel of names in the order of merit. Therefore after detailed discussion, the committee decided that the procedure for selection would be by awarding up to 85 marks for academic qualifications and other criteria/parameters as detailed below:
------------------------------------------------------------------------------Sl. Max.No. Details Marks------------------------------------------------------------------------------1 Academic Qualification 15------------------------------------------------------------------------------2 Publication indexed in index medicus 15International journals------------------------------------------------------------------------------3 Publication indexed in index medicus 10National journals------------------------------------------------------------------------------4 Awards and Achievements 10------------------------------------------------------------------------------5 Research Activities 10------------------------------------------------------------------------------6 Organizational skills/abilities 10------------------------------------------------------------------------------7 Experience in Administrations 10------------------------------------------------------------------------------8 Vision 10------------------------------------------------------------------------------Total 85------------------------------------------------------------------------------
4. Maximum of 15 marks to be kept for interview. Accordingly, the selection committee interviewed three candidates who appeared before it out of 6 candidates who were eligible. The committee evaluated their merit. The details are as follows:
-----------------------------------------------------------------------------------------Sl. Details Max. Dr. Srtivananda Dr. M.L. Dr. GovindaNo. Marks Siddaraju Raj. M-----------------------------------------------------------------------------------------1 Academic 10 10 10 10Qualification-----------------------------------------------------------------------------------------2 Publication 15 5 - -Indexed inIndex medicusInternationalJournals-----------------------------------------------------------------------------------------3 Publication 10 6 4 5Indexed inindex medicusNationalJournals-----------------------------------------------------------------------------------------4 Awards and 10 6 3 4achievements-----------------------------------------------------------------------------------------5 Research 10 6 5 -Activities-----------------------------------------------------------------------------------------6 Organizational 10 8 8 6skills/abilities-----------------------------------------------------------------------------------------7 Experience in 10 8 6 6administration-----------------------------------------------------------------------------------------8 Vision 10 8 6 5-----------------------------------------------------------------------------------------9. Interview 15 10 8 8-----------------------------------------------------------------------------------------Total 100 67 50 43-----------------------------------------------------------------------------------------
Subsequently, the Committee recommended the panel of names in the order of merit as detailed below:
-----------------------------------------------------------------------------------------Sl. Panel of names Classif Marks Marks Total marksNo. recommended in ication Secured secured secured in boththe order of in the in the academicmerit. academic interview qualificationqualificat- (max. 15) and otherion and criteria/other parameters andcriteria/ interviewparameters (max. 100)(max. 85)-----------------------------------------------------------------------------------------1. Dr. Shivananda UR 57 10 67-----------------------------------------------------------------------------------------2. Dr. M.L. Siddaraju UR 42 8 50-----------------------------------------------------------------------------------------3 Dr. Govindaraju UR 36 7 43-----------------------------------------------------------------------------------------
5. The said select list recommended by the selection committee was placed before the Governing Council in the meeting held on 19.02.2007 at 3.00 p.m. under the Chairmanship of Dr. V.S. Acharya, Hon'ble Minister for Medical Education, Government of Karnataka. Among 16 members, 11 were present and 5 were absent. However the 3rd respondent withdrew from the meeting. After a detailed discussion, the Governing Council authorised the Chairman, Governing Council to take a decision in this regard. Subsequently the Chairman took a decision and appointed the 3rd respondent who was at serial No. 2 in the panel of names recommended in the order of merit by the Selection Committee, to the post of the Director and accordingly appointment, order was issued. A notification came to be issued on 22.2.2007 to the effect that the 3rd respondent is appointed as the Director of the Institute for a period of 3 years from the day of assuming the charge, as per Annexure A. Subsequently a corrigendum was issued as per Annexure B adding to the earlier notification for a period of 3 years from the date of assuming charge as 'until further orders or appointment of Director in accordance with rules whichever is earlier'. It is thereafter the appellant preferred a writ petition challenging the aforesaid notification. In the writ petition he arrayed the State of Karnataka as 1st respondent, the Chairman of the Institute as the 2nd respondent and the person who is appointed as Director as 3rd respondent and the Institute as 4th respondent. All of them were served and they have entered appearance and filed their statement of objections.
6. In the statement of objections filed by the 1st respondent, at para 6 it is stated as under:
The Advisory Council could not take any decision. Hence, the Advisory Council authorized and delegated the power to the chairman to select the candidate amongst the short listed candidates. The Advisory Council was agreeable to any selection made by the chairman amongst the 3 candidates. According to the Advisory Council all the three candidates were equally suitable to the said post. In para 7 it is stated that the chairman after gathering further information in respect of the candidates selected Dr. Siddaraju third respondent herein for the said post The selection so made by the chairman is based on sound reasoning, social interest and interest of the institution as well as the principles laid down in the constitution of India. The selection so made is not violative of the any bye law of the institution. The advisory Council also concurred with the decision of the chairman. Further it is stated to meet the social and natural justice the 3rd respondent came to be selected, an opportunity should be given equally to the candidates since opportunity was already given to the petitioner/appellant this time the committee wished to give opportunity to the 3rd respondent who had lost opportunity in the previous occasion against the appellant. The appellant had already enjoyed an opportunity of a term as director now he is retired from service. The Advisory Council felt it to select the candidate who is in service. They denied that the petitioner is most merited candidate and award of marks cannot be a guiding principle for the selection of the Director. The post of Director is very prestigious one, all the factor/criteria have to be considered including that of a person who is in service and also caste factor to meet the social justice. The marks awarded is only for empanelment to short list the candidates and not for ultimate selection of the candidate. The marks awarded has no consequences or significance for the selection of the candidate for the post the Director.
7. The 2nd respondent and the 3rd respondent have also filed their detailed statement of objections justifying the action taken by the Governing Council.
8. After hearing the learned Counsel for the respective parties, the learned Single Judge formulated the following two points for consideration:
i) Whether the Appointing Authority/Governing Council has power to authorize second respondent to take a final decision with regard to appointment of 'Director?
ii) Whether the impugned Notification issued by Government dated 22nd February 2007 vide Annexure A and consequential insertion Notification of even date vide Annexure B are sustainable in law?
After referring to the case law on the point the learned Single Judge has held that the Governing Council has every right to authorise the 2nd respondent to take a final decision. On the 2nd point the learned Judge has held that the appointment was on merit basis and the 2nd respondent has recorded more than a couple of valid reasons for considering the case of the 3rd respondent for appointment of Director of the Institute and there is no arbitrariness, illegality or favouritism and therefore no case was made out for interference in such appointment, accordingly he dismissed the writ petition. Aggrieved by the said order the present writ, appeal is filed.
9. Sri Ravivarma Kumar, learned Senior Counsel assailing the impugned order contended that the appointing authority under the Bye-law, in relation to the post of a Director, is the Governing Council. In the entire Bye-law there is no provision for delegation of power by the Governing Council. In the absence of any express provision for delegation, the appointing authority could not have delegated their power of appointment to the 2nd respondent. Therefore when the appointment is made by a person who has no authority to make the appointment, the said appointment is void, ab initio and requires to be quashed. Secondly he contended that the Selection Committee constituted by the Governing Council consisting of specialists in the field who were expected to make selection and recommend the names of candidates interviewed in the order of merit. In the Bye-laws there is no provision enabling the Governing Council to sit in judgment or alter or modify the recommendation and exercise the discretion in selecting a person out of the persons recommended, thus unsettling the merit list Therefore when admittedly the appellant is more meritorious, his name finds at Sl. No. 1, the appointment of 3rd respondent is illegal and violative of Article 14 and 16 of the Constitution of India. All the three reasons given for overlooking the claim of the appellant, are arbitrary and therefore the appointment of 3rd respondent requires to be quashed.
10. Sri H. Subramanya Jois, learned Senior Counsel, appearing for the 2nd respondent contended that the recommendation made by the Selection Committee is not final. The discretion is left to the Governing Council to select among the recommended candidates who is more suitable to hold the post of a Director. The Governing Council also has the discretion to select one among the recommended candidates or to authorise the Chairman to make such selection. When a resolution is passed authorising the Chairman to appoint the Chairman has exercised his discretion and for good reason he has preferred the 3rd respondent who is at serial No. 2. The merit assigned by the Selection Committee cannot be the only criteria in the matter of making appointment and therefore he submits that no case is made out for interference.
11. Learned Counsel appearing for the 3rd respondent reiterating the aforesaid stand contended that, the Governing Council at its discretion, authorised the 2nd respondent to select one among the recommended candidates. In this regard they have taken into consideration the caste of the 3rd respondent which they ought to have taken into consideration under the Bye-laws and have preferred the 3rd respondent who is duly qualified to be appointed to the said post. This Court under Article 226 of the Constitution of India cannot sit in judgment over the merit of selection and therefore he submits no case is made out for interference.
12. From the aforesaid material on record it is clear that in so far as the appointment to the post of Director is concerned the Appointing Authority is the Governing Council. The Governing Council means the Governing Council of the Institute. Clause 12 of the General Bye-laws provides for constitution of Selection Committee for appointment. Governing Council constitutes the Selection Committee of experts for recruitment to various posts in the institute. For the post of Director they have constituted a Selection Committee consisting of 5 persons. The Chairman of the Governing Council is the Chairman of the Selection Committee also. The said Selection Committee is vested with the power to decide its own procedure for conducting the selection as set out above. It formulated a particular procedure for conducting selection which procedure is not challenged. Further, Clause 12(4) of the Bye-laws mandates that the Selection Committee shall prepare a panel of names in the order of merit. So the Selection Committee not only selects the candidates, it also shall decide among the selected candidates, who is more meritorious and to submit its recommendation to the Governing Council. In the instant case it is not in dispute that the selection committee selected three candidates. The appellant has secured 67 marks, whereas the 3rd respondent has secured 50 marks and one Dr. Govindaraju at Sl. No. 3 has secured 43 marks. The said recommendation of the Selection Committee was placed before the Governing Council to take a decision. Again the Governing Council is also headed by the 2nd respondent who is also the Chairman of the Selection Committee. After detailed discussion, the Governing Council did not take any decision in the matter of appointment to the post of Director. On the contrary, they authorised the Chairman of the Governing Council to take a decision.
Therefore, the first point for consideration is whether the Governing Council had authority to authorise the Chairman to take a decision on their behalf. The law on the point is well settled.
13. The Apex Court in the case of Marathwada University v. Sesharao Balwant Rao Chavan reported in : (1989) 3 SCC 132 has held as under:
It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation.
Halsbury's Laws of England (Vol.I 4th end., para 32) summaries these principles as follows:
32. Sub-Delegation of Powers- in accordance with the maxim delegatus non protest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication there is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind.
14. The maxim 'delegatus nan protest delegare' is primarily to be remembered in connection with sub-delegation. It means that a delegate, who has received his authority from the principal, is incompetent to sub delegate his power to some other person or body. From this it follows that unless sub-delegation is authorised by the statute itself, sub-delegation would be bad and any act done by the sub-delegate would be void. The maxim sets out what is merely a rule of construction of a statute. Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. Where a statute confers a power on collective body, the later cannot delegate that power to be exercised even by one of its own members, in the absence of statutory provision authorising such sub delegation. Thus, where a statute entrusts a discretionary function to a Board consisting of two or more members, it must be performed by that body jointly and the Board cannot delegate that function to one of its members. Even where the statute itself authorises delegation of a power conferred by it by the statutory authority, the status of the delegate is that of an agent. When sub delegation is not authorised by the parent statute which delegated the power, the order or resolution which authorised sub-delegation become ultra vires and therefore void. As a result, order passed by the sub-delegate also become void. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted. Sub delegation can be sustained if permitted by an express provision or by necessary implication from the statute. The power delegated have to be exercised by the Board and not by its components.
15. From the aforesaid statement of law, it is clear that when the Bye-laws confer power of appointment with the Governing Council of the institute, the said power of appointment is to be exercised only by the Governing Council. The bye-law do not provide sub-delegation. Even there is no contrary indication in the bye-law. In the absence of any power of delegation, the Governing Council delegated its power to appoint, the Director to the 2nd respondent. It is clear from the proceedings of the meeting held on 19.2.2007, there were in all 10 eminent persons present in the meeting. They had power to take a decision. They have left, the same to the Chairman. It is a clear case of abdication of responsibility in managing the Institute. If the eminent people who were in the Governing Council, did not take any interest and thought of leaving such onerous task to the Chairman, the question would arise, what is the purpose for having a Governing Council, with eminent people on its board? It should be a collective decision. This habit of delegation of authority to one person smacks of authoritarian tendencies and negates the underlying democratic principles, which is behind the formation of these committees. This tendency is to be abjured, as it runs counter to democratic functioning of such institution of national importance.
16. Under these circumstances the finding recorded by the learned Single Judge that there is authority to delegate, is contrary to the material on record. The learned Single Judge has referred to several decisions of the Hon'ble Apex Court interpreting the provisions of Bye-laws or Regulations which provided for sub-delegation. In the present case there is no provision for delegation and therefore it is a case of wrong application of the said case law to the facts of the case. Accordingly the finding recorded by the learned Single Judge on point No. (i) is hereby set aside.
17. The second point that arises for consideration is whether the Appointing Authority can ignore the order of merit recommended by a Selection Committee of experts? The law on the point is also well settled.
18. The Apex Court in the case of Neelima Misra v. Harinder Kaur Paintal and Ors. reported in : (1990) 2 SCC 746 has held as under:.In the University of Mysore v. C.D. Govinda Rao : AIR 1965 SC 491 this Court observed that the courts should be slow to interfere with the opinion expressed by the experts in the absence of mala fide alleged against the experts. When appointments are based on recommendations of experts nominated by the Universities, the High Court has got only to see whether the appointment had contravened any statutory or binding rule or ordinance. The High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which the Chancellor has acted.
In the case of Jatinder Kumar and Ors. v. State of Punjab and Ors. reported in : (1985) 1 SCC 122, the Apex Court has held as under:
12. The establishment of an independent body like Public Service Commission is to ensure selection of best available persons for appointment in a post to avoid arbitrariness and nepotism in the matter of appointment. It is constituted by persons of high ability, varied experience and of undisputed integrity and further assisted by experts on the subject. It is true that they are appointed by Government but once they are appointed their independence is secured by various provisions of the Constitution. Whenever the Government is required to make an appointment to a higher public office it is required to consult the Public Service Commission. The selection has to be made by the Commission and the Government has to fill up the posts by appointing those selected and recommended by the Commission adhering to the order of merit in the list of candidates sent by the Public Service Commission. 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. But if it chooses not to accept the recommendation of the Commission the Constitution enjoins the Government to place on the table of the Legislative Assembly its reasons and report for doing so. Thus, the Government is made answerable to the House for any departure vide Article 323 of the Constitution. 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 Commissioner, ft 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 many appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. We are supported in our view by the two decisions of this Court in A.N. D'Silva v. Union of India and State of Haryana v. Subash Chander Marwatha.
19. Lastly, the Apex Court in the case of Som Raj and Ors. v. State or Haryana and Ors. reported In : (1990) 2 SCC 653 has held as under:.Normally the order of appointment would be in the order of merit of candidates from the list and must be in accordance with rules. His exercise of power should not be arbitrary. The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based. In a system governed by Rule of discretion when conferred upon an executive authority must be confined within clearly defined limits. The Rules provide the guidance for exercise of the discretion in making appointment from out of select lists which was prepared on the basis of the performance and position obtained at the selection. The appointment authority is to make appointment in the order of gradation, subject to any other relevant rules like, rotation or reservation, if any, or any other valid and binding rules or instructions having force of law. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law. Discretion means sound discretion guided by law or governed by known principles of rules, not by whims or fancy or caprice of the authority.
20. Therefore, it is clear that expert's committee is constituted to ensure selection of best available persons for appointment and to avoid arbitrariness and nepotism in the matter of appointment. Such experts should be of high ability, varied experience and of undisputed integrity. When appointments are based on recommendations of experts, in the absence of mala fides alleged against the experts, the appointing authority should be slow to interfere with the opinion expressed by the experts. Once such committee makes its recommendation in the order of merit in the list of candidates, it is to be respected. Normally the order of appointment should be in the order of merit of candidates from the list and must be in accordance with the Rules. The recommendation of such committee is only recommendatory and the final authority vests with the appointing authority. It is open to the appointing authority to accept the recommendation or may decline to accept the same. If it were to accept the recommendation it has to make appointment strictly adhering to the order of merit as recommended by the expert committee. It cannot disturb the order of merit according to its own sweet will, except for other good reasons viz., bad conduct or character. However, if any discretion is expressly provided under the statute in the matter of selecting a person recommended by the expert committee, then such discretion could be exercised. Discretion means sound discretion, guided by law or governed by known principles of rules, not by whims or fancy or caprice of the authority. The exercise of discretion should not be arbitrary. The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based. In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly denned limits. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law.
21. In the instant case, there is no express provision which conferred any discretion on the Appointing Authority to select a candidate among the candidates in the merit list recommended by the Selection Committee. Secondly the 1st reason for discarding the appellant and preferring the 3rd respondent as set out in the order passed by the learned Single Judge is that the appellant was earlier the Director of the Institute and if the appellant is continued as a Director there would not be no opportunity to other equally available candidates. As the 3rd respondent did possess the requisite qualification, there is nothing wrong in preferring the 3rd respondent as every one should get an opportunity to hold the said post. When the selection is based on merit, where there is no prohibition for a person holding the post to compete with others in the selection, after he is selected and placed at Sl. No. 1, he cannot be denied the appointment on the ground that he was holding the post earlier. Article 14 and 16 of the Constitution of India which provide for equal opportunity is violated. The appellant is discriminated without any justifiable reason. The power has been abused and arbitrarily exercised.
22. The second reason given is, even on the previous occasion there was competition between the appellant and the 3rd respondent and the 3rd respondent did not make it on the previous occasion and therefore he should be given an opportunity. On the previous occasion if he did not make it, it is because he did not have merit. Even in the present case, if compared, he has no merit. If on the last occasion he was not selected, this time also he should not have been selected. Therefore the said reasoning do not stand to reason.
23. The 3rd reason given is that the 3rd respondent belongs to depressed class of the society and because of his hard work and working in the Govt. Hospital he has reached such a highest level, which is not an easy task and therefore the 2nd respondent was justified in appointing the 3rd respondent as Director taking into consideration the back ground of the 3rd respondent. In this regard it is to be pointed out that the notification issued for appointment made it very clear that the post is to be filled up within the unreserved category. While making appointment under reserved category, first the caste of the person is to be taken into consideration among them, whoever is meritorious is to be selected. Whereas in the case of making appointment to an unreserved post, it is merit, and merit alone is the consideration. The caste of the candidate to be appointed is totally irrelevant. This fundamental principle has not been taken into consideration by the 2nd respondent while making the appointment and the learned Single Judge was not justified in upholding the said contention. In this regard both the learned Single Judge as well as the 2nd respondent have not taken into consideration the settled legal position and failed to note the impugned action is violative of Article 14 and 16 of the Constitution.
24. The reasons assigned to overlook the merit of the appellant as set out above is clearly arbitrary and cannot be sustained in law. In fact it is interesting to note that the appointing authority was conscious of the fact that the appointment which it is making is contrary to law. The guilty mind is clearly demonstrated in the notification issued on 22.2.2007. After issuing the notification appointing the 3rd respondent as Director of the Institute, one more notification came to be issued by way of corrigendum to add words 'until further orders or the appointment of Director in accordance with rules whichever is earlier'. Hence it is clear that the appointment of the 3rd respondent is not in accordance with the rules. Therefore it is clearly a case of abuse of the power by the 2nd respondent who is holding such a high post. In utter disregard to the rule of law, the appointment is made according to his whims and fancies. It is a colourable exercise of power. Under these circumstances, the impugned order as well as the order of the learned Single Judge cannot be sustained. Accordingly we pass the following:
ORDER
i) The writ appeal is allowed.
ii) The impugned order passed by the learned Single Judge as well as the notification issued as per Annexure A and B appointing the 3rd respondent as Director of the Institute are hereby quashed.
iii) Respondents 1, 2 and 4 are directed to pay cost of Rs. 10,000/- to the appellant.
iv) The selection process till the stage of recommending the names of candidates is in order and therefore the */4th respondent shall proceed to consider the recommendation from aforesaid stage in accordance with law and in the light of the observations made above, ** within 5 weeks from the date of receipt of a copy of this Order.
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* 1st, 2nd and corrected vide Court Order dt: 7.8.2009.
** corrected vide Court Order dated 7.8.2009.