ORDER
S.V. Maruthi, J.
1. This writ petition is filed for a declaration declaring the action of respondents 1 to 3 in appointing respondents 5 and 6 as professors in Cardiothoracic Surgery and Anaesthesiology vide proceedings No. 1/165/ Acad/95 dated 22-2-95 as illegal, arbitrary, void, etc.
2. It is not necessary to consider the case of the second (sic. sixth) respondent as she is no longer continuing as Professor in the first respondent Institution.
3. The petitioner is the Honorary Professor of Cardiothoracic Surgery at the first respondent Institute. The petitioner is challenging the appointment of fifth respondent as Professor in the first respondent Institute. According to the petitioner for the purpose of appointment as Professor, a person should have the qualifications included in the I or II schedule or Part-II of the third schedule to the Indian Medical Council Act of 1956 and a Post Graduate qualification Ex. MD/MS or a recognised qualification equivalent in the respective discipline/subject and/or M.Ch for Surgical Super-Specialities and D.M for Medical Super Specialities or qualifications recognised equivalent thereto and fourteen years teaching and/or research experience in a recognised Institute in the subject or speciality after obtaining the qualifying degree of MD/MS or twelve years after obtaining M/Chand/DM or qualification recognised equivalent thereto. The fifth respondent who was aged about 59 years did not possess any teaching or research experience as required by the Rules for the post of Professor in the first respondent Institute. From 1973 onwards till his appointment as Professor in the first respondent Institute, he was a private practitioner in Dubuque, IOWA State in United States of America. Further according to Rules of recruitment, any recruitment to regular post should be made by advertisement in the News paper inviting applications from qualifying candidates for such posts and the Selection Committee constituted under Section 22 of Act 13/1989 has to process the application of candidates who have applied for the posts and select a suitable person. In the case of appointment the procedure contemplated under Section 22 of the Act has not been followed. The Executive Board's meeting held on 17-2-95 was presided over by the fourth respondent in violation of Regulation-25, Chapter-Ill of the first regulation of the Nizam's Institute of Medical Sciences Act 13/1989 (hereinafter referred to as 'the Act'). The fourth respondent was only an Advisor to the State Government on Medical and Health matters and he exerted pressure on the President of the Governing Council of the Institute in appointing respondent No. 5. It is also stated that from 1990 onwards the fourth respondent was exerting pressure on the first respondent Institute to recruit 5th and 6th respondents as Professors, in violation of Rules, there was enmass resignations by three Senior Cardiothoracic Surgeons (Professors) from the Institute. The State Government intervened and as a result, the Institute dropped the idea of recruiting respondents 5 and 6 as Professors. The main objection for the appointment of 5th respondent as Professor in the Institute in 1990 was that he was deliberately brought in by the fourth respondent in order to make him as Head of the Department who lacks in the basic requirements to become a Professor under the Institute rules, ignoring the men working in the department and their experience and seniority. Having failed in his attempt in bringing in the 5th respondent in 1990, the fourth respondent immediately after the Telugu Desam Parry in 1995 assumed office endorsed the bio-data of the fifth respondent. A Resolution bearing No. 11, dated 9-6-1990 passed by the then Executive Board, and a letter No. 473/E2/90-1 dated 16-6-90 from the Secretary, Medical Health and Family Welfare Department were given effect to in 1995 to bring 5th and 6th respondents into the Institution as Professors vide resolution No. 267 of the Executive Board. In view of the above, the appointment of the 5th respondent is liable to be set aside.
4. The first respondent filed a counter-affidavit stating that the 5th respondent is a native of Andhra Pradesh settled at America. He got his MBBS Degree in 1962 from Andhra University and after obtaining M.D. he has become a Diplomat of American Board of Surgery, Diplomate American Board of Thoracic and Cardiovascular Surgery, Fellow of Royal College of Surgeons of Canada and Member, IOWA Academy of Surgery. He is a famous Cardiothoracic surgeon who worked for three decades in various Hospitals in United States of America. He started Cardie programme at Mercy Health Centre in 1975 and performed about 5000 Cardiovascular Surgeries including Coronary Bypass, Mitral Valve replacement and thoracic and abdominal aortic aneurysms. He also performed a good number of Pediatric Cardiac surgeries in the States. The fifth respondent along with the sixth respondent started doing C.T. Surgeries in NIMS from 6th March, 1995 on their appointment in the NIMS. Eversince, 1989 they have been showing keen interest to serve this Institute without expecting any remuneration or salary or service benefits. Their requests have been placed before the first meeting of the Executive Board on 9-6-1990. Resolution No. 11 dated 9-6-90 was passed by the Executive Board resolving to appoint the 5th respondent as Visiting Professor in C.T. Surgery for a period of 3 years initially on a nominal salary of one rupee per annum with fringe benefits like telephone, conveyance and Attender allowance and without the benefit of any regular appointment or promotion. The State Government in their letter No. 473/E2/90-1 dated 16-6-1990 permitted the Institute to appoint the 5th respondent as Honorary Consultant in various specialities in Nizam's Institute of Medical Sciences and the same was placed before the Board for its ratification. Further no orders could be issued as the 5th and 6th respondents dropped their visit to India at that time. In 1994 they have renewed their request to join the Institute. This offer was received at a time when the Institute was in search of talented Doctors to replace 31 Doctors-Professors (3) + Addl. Professors (3) + Associate Professors (7) + Assistant Professors (18) who resigned between October, 1993 to December, 1994 to take up employment in private sector in their personal interest. The first respondent issued advertisements incurring an expenditure of more than Rs. 2.5 lakhs. In this background respondents 5 and 6 renewed offers were received and they were forwarded by the Advisor to the Government in February, 1995. The proposals were placed before the Executive Board at its 12th meeting held on 17-2-1995. The Executive Board agreed to utilise the services of the 5th respondent on full time basis on payment of nominal salary of Re. 1/- per annum with fringe benefits for a period of one year. They assumed charge on 4-3-1995 and their term expires by 3-3-1996. For functional convenience, he is designated as Professor. So far he has performed 105 heart surgeries earning approximately a sum of Rs. 10 lakhs to the Institute. The appointment of the 5th respondent is not against any regular vacant posts of Professors or with regular pay of scale as applicable to the existing Professors working in the Department and their appointment would not affect the seniority or otherwise of the existing Professors. The action taken by the first respondent is for the benefit of patients and keeping in view the interest of the Institute. Therefore, it is not necessary to follow the procedure prescribed in Standing Order No. 2 dated 30-1-1992. The Executive Board under Section 12 of the Act is empowered to appoint such number of persons and on such terms and conditions as it may deem fit for the conduct of the studies, investigations, research, teaching or other work undertaken by the Institute. After the 5th respondent was appointed in the Department of C.T. Surgery and Anaesthesiology respectively 297 surgeries were conducted earning an amount of Rs. 29,14,890/-.
5. It is stated that the 4th respondent presided over the meeting of the Executive Board on 17-2-1995 as the Vice-President of the Institution, who was scheduled to preside over the meeting could not attend the said meeting in view of his last minute changes in his programme of unaviodable nature. It is at the option of the members of the Executive Board, the fourth respondent was requested to preside over the meeting. The allegation that the fourth respondent exerted pressure and influenced the President of the Governing Council while appointing the 5th respondent is denied. The allegation that when the 4th respondent was the Director of the first respondent Institute brought pressure on the authorities to appoint 5th respondent in 1990 as a result Professors tendered resignation was denied and explained stating that these Professors were not qualified to be appointed as Professors. However, the Executive Board relaxed the qualification at that point of time and appointed them as Professors. The allegation that the fourth respondent was instrumental in bringing respondent No. 5 and appointed him as Professor was also denied. It is further alleged that the petitioner is not an aggrieved person and therefore, the writ petition filed at his instance is not maintainable. It is stated that the appointment of the 5th respondent is in the interest of the Institute and since his appointment is not in the regular service as Professor, it is not necessary to follow the procedure contemplated under Section 22 r/w the standing orders. In the light of the above, it is prayed that the writ petition has to be dismissed with costs.
6. To consider the arguments advanced by the petitioner, it is necessary to refer to the order of appointment dated 22-2-1995. The relevant portion reads as follows:
'Dr. R.V. Mullapudi and Dr. Nalini Mullapudi have since returned from abroad and their earlier offer was renewed and a proposal was placed before the Executive Board at its meeting held on 17-2-1995 and its approval was obtained.
Accordingly Dr. R.V. Mullapudi is appointed as Professor in the Department of C.T. Surgery on a full time basis on a nominal salary of Rupee one per annum, initially for a period of one year from the date of reporting in the Institute.
He shall also be entitled to Professional indemnity cover and other fringe benefits like Telephone, conveyance etc. He is informed that the post is full time and he is therefore, not entitled to do any private practice so long as he continued in the Institute. He shall abide by all the rules and regulations of the Institute.'
It is evident from the above that the 5th respondent was appointed as full time Professor though on a payment of Re. 1 /- per annum for a period of one year and he is entitled for the other benefits and he is not allowed to do private practice as his appointment is as a full time Professor. In other words, the 5th respondent was appointed as full time Professor. It is not disputed for the purpose of appointment of a full time Professor the qualifications that are required are D.M. degree or 12 years teaching experiences or research experience in a recognised Institution after obtaining the D.M. qualification or qualification recognised equivalent thereto for Professor in Cardiothoracic Surgery. In the case of Professor of Hospital Administration 14 years teaching or research experience after obtaining P.G. degree in the subject concerned. The procedure for the purpose of appointment as Professor is prescribed under the Standing Orders. The relevant Standing Order is No. 2 dated 30-1-1992. The method of appointment as prescribed under the Standing Order says that all the categories of posts shall be advertised in News Papers inviting applications specifying the category of post and the scale of pay, qualifications required and preferential qualifications to be possessed and the teaching experience and age. The Executive Registrar who is the Secretary of the Selection Committee shall issue the notification with prior written approval of the Director inviting applications for appointment to various posts. On receipt of the applications he shall prepare statements showing the name etc. to the Selection Committee. The Selection Committee shall interview the eligible persons eligible to be appointed to various posts. Section 22 of the NIMS Act, 1989 deals with the constitution of Selection Committee for the appointment or promotion of a Professor which consists of Director, Secretary to the Government, Health, Medical & Family Welfare Department; one external expert in the concerned speciality, nominated by the Director, Dean of the Faculty, one Honorary Medical consultant to the Institute to be nominated by the Director provided that no person shall participate in the meeting of the Selection Committee for any appointment, if he or his near relative is a candidate for that appointment.
7. It is not denied in the counter-affidavit that the appointment of the 5th respondent is not in accordance with the procedure contemplated under the Standing Orders under the Act. Therefore, his appointment is contrary to law. The respondent justified the appointment under Section 12(c) of the Act and contends that the Executive Board passed a resolution in 1990 proposing to appoint the 5th respondent as a Visiting Professor in C.T. Surgery. Therefore, it is not necessary to follow the procedure contemplated under Section 22 r/w the Standing Orders. I will now examine the powers of the Board under Section 12 of the Act. It reads as follows:
12. Power of the Executive Board:
(1) The Executive Board shall have the following powers, namely:-
(a) and (b) not relevant
(c) to appoint such number of persons and on such terms and conditions as it may deem fit as for the conduct of the studies, investigations, research, teaching or other work undertaken by the Institute;
It is clear from the above Section 12(c) that it enables the Executive Board to appoint persons for the conduct of studies, investigations, research, teaching or other work. It appears that pursuant to this power under Section 12(c), the respondent framed certain guidelines for the appointment of Visiting Professors. These guidelines are as follows:
(1) A Visiting Professor should be an eminent scholar in his field and significant outstanding contributions.
(2) The tenure of appointment of a Visiting Professor should be one year at a time and can be renewed depending upon the necessity. Visiting Professor's appointment can be made with the approval of Executive Board only.
(3) A person appointed as a Visiting Professor from outside the country may be paid an honorarium upto Rs. 3,000/- per month..
(4) If a superannuated person is appointed as a Visiting Professor the honorarium payable to him should not exceed Rs. 1,500/- per month excluding any superannuation benefits.
There are other conditions which are not relevant for the purpose of disposing of this writ petition.
8. It is true that under Section 2(c) (sic. 12(c)) the Executive Board is competent to appoint Visiting Professors who possess the qualification prescribed under the guidelines. However, a reading of the order of appointment makes it clear that the fifth respondent was not appointed as Visiting Professor but as a full time Professor though the resolution that was passed in 1990 was to appoint him as Visiting Professor, In other words, under the colour of appointing a Visiting Professor the respondents actually appointed him as regular Professor. The explanation in the counter-affidavit stating that the appointment of the fifth respondent does not in any way affect the rights of other regular Professors cannot be considered in determining the validity of the appointment of the 5th respondent. The Counsel for the petitioner brought to my notice the judgment in Pratap Singh v. State of Punjab, : (1966)ILLJ458SC it was held by the Supreme Court that:
'In legal parlance it would be a case of a fraud on a power, though no corrupt motive or bargain is imputed. In this sense, if it could be shown that an authority exercising a power has taken into account------as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of power would be bad.'..................
'The Courts have, on occasions, resolved the difficulty by finding out the dominant purpose which impelled the action and where the power itself is conditioned by a purpose, have proceeded to invalidate the exercise of the power when an irrelevant purpose is proved to have entered the mind of the authority. This on the principle that if in such a situation the dominant purpose is unlawful then the act itself is unlawful and it is not cured by saying that they had another purpose which was lawful.'
'Treating it as a question of ultra vires, the question is what is the nature of the power which has been granted to achieve a definite object in which case, it would be conditioned by the purpose for which it is vested. Taking the present case of the power vested in Government to pass the impugned orders, it could not be doubted that it was vested in Government for accomplishing a defined public purpose viz., to ensure probity and purity in the public services by enabling disciplinary penal action against the members of the service suspected to be guilty of misconduct. The nature of the power thus disclosed its purpose. In that context the use of that power for achieving an alien purpose wrecking the Minister's vengeance on the Officer would be mala fide and a colourable exercise of that power and would therefore, be struck down by the Courts.'
The order of appointment discerns the dominant purpose as appointment of a regular Professor and not a Visiting Professor. The respondents therefore cannot justify the appointment on the ground that they had another purpose which is lawful on the face of the order. They have exercised the power for an alien purpose and under the colour of appointing a Visiting Professor they appointed a Professor. The first respondent is an August body and its action should not only be in accordance with law, but it should also appear to be in accordance with law. On the face of the order it cannot be held that it is in accordance with the provisions of the Act. Therefore, the appointment of the 5th respondent cannot be justified. It is also pointed out that the first respondent being a statutory authority has to act with responsibility and cannot deal with careers of responsible persons casually without applying their minds.
9. Secondly under Section 12(c), the Executive Board is competent to appoint persons for the conduct of the studies, investigations, research, teaching or other work undertaken by the University and the guidelines are also issued for the said purpose. Section 11 of the Act provides for the constitution of the Executive Board. It reads as follows:
Section 11 Executive Board: There shall be an Executive Board consisting of the following members of the Governing Council, namely:-
(1) The Vice-President of the Governing Council;
(2) The Secretary of the Governing Council;
(3) The Secretary to Government, Health Medical and Family Welfare;
(4) The Secretary, Finance and Planning (Finance Wing) Department;
(5) The Dean of the Faculty of the Institute;
(6) A member of the Nizam's Charitable Trust to be nominated by the President; and
(7) A member to be nominated by the President from amongst the Financing Agencies.
It is admitted by the respondents that the fourth respondent participated in the deliberations while passing the resolution to appoint the fifth respondent as Professor. It is also admitted that the fourth respondent does not fall within any of the categories of the members of the Executive Board. It is also admitted that he was only an Advisor to Government of Andhra Pradesh. In the capacity as Advisor to Govt. of Andhra Pradesh, he participated in the deliberations of the Executive Board. The first respondent justified the participation of the fourth respondent in the deliberations of the Executive Board on the ground that the Vice-President had 'to leave on other work urgently and therefore, the other members of the Executive Board requested the fourth respondent to preside over the meeting of the Executive Board. Section 15 of the Act authorises the Vice-President to invite any person not being a member of the Governing Council by the Executive Board to attend the meeting of the Governing Council of the Executive Board but such invitee shall not be entitled to vote at such meeting.
10. From a reading of Section 15, it is clear that even if the fourth respondent is treated as an invitee, he is not entitled to participate in the deliberations and not entitled to vote. On the other hand, the respondents have categorically admitted that he participated in the deliberations and was a party to the resolution. Therefore, since the fourth respondent participated in the meeting of the Executive Board and was a party to the resolution proposing to appoint the fifth respondent as a Visiting Professor, the appointment of the fifth respondent is not in accordance with the provisions of the Act. Relying on Nandjee Singh v. P.G. Medical Students Association, : AIR1993SC2264 the Counsel for the respondents contended that individual dispute cannot be converted into public interest litigation and therefore, the writ petition is not maintainable at the instance of the petitioner. The argument of learned Counsel cannot be sustained as it is the reputation and interest of the Institution that is at stake and therefore, any person who is interested in protecting the interest of the Institution is entitled to file the writ petition. It is the bounden duty of a citizen who is associated with the Institution to see that the Institution acts in accordance with the provisions of the Act.
11. In view of the above, the petitioner succeeds and the writ petition is allowed with costs. Advocate's fee Rs. 1,000/-.