M.P. Thakkar, J.
1. A question of fundamental importance (and of principle) which is likely to have great impact on the lives and careers of newly graduated doctors prosecuting their studies for post-graduate courses is raised in this petition under Article 226 of the Constitution of India. It is raised by petitioner No. 1 (along with 3 other petitioners) who secured 64.80% marks in the speciality of medicine as against 53% secured by respondent No. 7 at the final M.B.B.S. Examination upon the latter (and others who secured less marks than him) being preferred to him for appointment as Registrar in Medicine at the L.G. Hospital, Ahmedabad, a teaching hospital run by the Municipal Corporation of Ahmedabad. They have challenged the appointments made in disregard of their claim to the said post by virtue of much higher marks and better merits than the appointees as being unprincipled, arbitrary, capricious and violative of ArticleS 14 and 16(1) of the Constitution of India.
2. Respondent No. 1, Municipal Corporation of Ahmedabad, which fulfils the definition of 'State' as embodied in Article 12 of the Constitution of India runs two Hospitals in Ahmedabad, namely, Lallubhai Gordhandas Hospital in Maninagar (called 'L.G. Hospital') and Smt. Shardabhai Chimanbhai Lalbhai Hospital, Saraspur (referred to as the 'Saraspur Hospital'). Both these Hospitals are conducted by the Municipal Corporation of Ahmedabad as its own departments. Some arrangement appears to exist under which these hospitals function as teaching hospitals for post-graduate courses conducted by K.M. School of Post-Graduate Medicine and Research. It may be mentioned that the Municipal Corporation runs and administers a Medical College known as N.H.L. Municipal Medical College which is affiliated to the Gujarat University. So far as post-graduate studies are concerned, there are no facilities or arrangements in the Municipal Medical College for the same. There is, however, an associate institution known as K.M. School of Post-Graduate Medicine and Research which is run by a private trust. It is associated with another Hospital in Ahmedabad known as V.S. General Hospital which is run and administered by a private trust but which appears to be receiving grants from the Municipal Corporation of Ahmedabad. The Deputy Municipal Commissioner (H & L) of respondent Municipal Corporation issued a public notice inviting applications for the resident posts of senior Registrars and Registrars so as to reach him on or before May 6, 1974. The resident posts were to be filled in at the Municipal Hospitals, namely, Smt. Shardaben and L.G. Hospitals which are teaching Hopitals (see Annexure 'A'). Inter alia 3 posts of Registrars were to be filled in the speciality of Medicine and 3 in the speciality of Obstetrics and Gynaecology, referred to as 'Gynaec' for the sake of brevity hereinafter. The posts were to carry a stipend of Rs. 460/ per month along with the amenity of free quarters. The qualifications for the posts of Registrars as per the advertisement were specified as under:
Candidates possessing Graduate or Post-Graduate qualifications and having experience of Housemanship of twelve monthe in the respective branch are eligible.
The petitioners (Nos. 1 to 4) had applied for the post of Registrar in Medicine. Petitioner No. 5 had applied for the post of Registrar in Gynaec. The applications of ail of them were rejected. Instead, some others who had secured lesser marks than all the petitioners were appointed. It will be convenient to examine the case of petitioners Nos. 1 to 4 as against Respondent No 7 in the first instance. The particulars relating to the case of these petitioners vis-a-vis that of Respondent No. 7 who secured appointment in preference to the petitioners from the standpoint of marks obtained by them at the final M.B.B.S. Examination may be gleaned from the following tabular statement:
Name of the Total marks secured Percentage of marksdoctor. in the subject of secured in the sub-Medicine at the ject of Medicine at final M.B.B.S. thefinal M.B.B.S. examination.examination.1. Dr. B.M. Rana 259/400 64.752. Dr. P.A. Bhatt 243/400 60.753. Dr. R.D. Bhatt 241/400 60.254. Dr. N.H. Reperelia 227/400 56.755. Dr. R.G. Agarwal 212/400 53(Resp. No. 7)
Thus, it will be seen that though petitioners Nos. 1, 2 and 3 obtained marks ranging from 60.25% to 64.75% respondent No. 7 who obtained about 10% less then the petitioner No. 1 and 7% less than the rest secured the appointment to the post of Registrar in Medicine. In other words, though petitioners Nos. 1, 2 and 3 obtained 47, 31 and 29 marks respectively more than the respondent No 7 out of a total of 400 marks in the speciality of Medicine at the final M.B.B.S. Examination, their claims ware disregarded and in preference to them respondent No. 1, Dr. R.G. Agarwal, has been appointed as a Registrar. The petitioners have challenged the appointment of respondent No. 7 made in disregard of their claim, and in preference to them, as being arbitrary, unprincipled, capricious and being violative of Article 14 and 16 of the Constitution of India.
3. Now, it is an admitted position on the part of the respondents that no rules have been framed by the Municipal Corporation of Ahmedabad in regard to the matter of making appointments to the post of Registrar in the various specialities. The selection is made by a Selection Committee envisaged by Section 54 of Bombay provincial Municipal Corporations Act. Annexure '3' to the affidavit-in-reply filed by the respondent-Corporation shows that the selection was made at the meeting of the Staff Selection Committee on June 28,1974 whereat the Municipal Commissioner, Deputy Municipal Commissioner (Revenue & Law), Deputy Municipal Commissioner (General), Municipal Chief Auditor, Superintendent, L.G. Hospital, and Superintendent, Saraspur Hospital, were present. The ground on which the claim of the petitioner has been disregarded according to the respondent corporation is that the candidate selected by them, namely, respondent No. 7 had worked as a Houseman at one of the Municipal Hospitals and, therefore, weightage was given to that factor. Before we examine the validity or otherwise of the challenge, it deserves to be mentioned that the post of Registrar in a particular speciality or subject has considerable value and significance for the newly graduated doctors who are prosecuting studies in postgraduate courses in that particular speciality having regard to the fact that It enables them to acquire invaluable practical experience and knowledge which equips them to a considerable extent for their past-graduate Degree o; Diploma examinations. It has also importance from the point of view that the very fact that experience has been gathered or gained in the post of a Registrar in particular speciality is considered to be a plus factor for securing admission in overseas institutions imparting education in post-graduate medical courses and also helps the doctors concerned in securing employment. Of course it is not in dispute that the appointment to the post of a Registrar in a particular speciality is not a sine-quo-non for securing a postgraduate Degree in that particular subject. It has, however, considerable value and significance from the aforesaid standpoint. Besides, it solves his financial problem inasmuch as rent-free quarters are provided and a monthly stipend of Rs. 460/- per month is awarded to a Registrar. It appears that the post of Registrar in the subject of their choice or speciality is very much coveted and widely sought for by newly graduated doctors prosecuting their studies for postgraduate Degrees or Diplomas in that particular subject or speciality. The decision of the Court would, therefore, naturally have great impact on the lives and careers of such students including the petitioners.
4. Before we proceed further, the stand taken by the respondent Corporation through Dr. I.R. Joshi, Superintendent of the Saraspur Hospital, in the affidavit sworn by him on July 15, 1974 requires to be adverted to. For the sake of being precise it is expedient to reproduce the relevant averments from the affidavit in the very words of Dr. Joshi. Says Dr. Joshi in paragraphs 3 to 6:
3. At the outset I beg to point out that the Registrar's post in the various municipal hospitals is a stipendary post and so far as the municipal hospitals are concerned, no rules are framed for selection and appointment of Registrar.
4. In making selection of Registrars, besides the marks obtained by the various candidates at the M.B.B.S. Examination in the subject of their choice, their experience on the House post in different disciplines of medicine is also considered. Another consideration is whether the student-candidate has cleared the examination at the first attempt or not. If the student has failed and has cleared the examination after more than one attempt, that factor also weighs in making selection of the candidate.
5. While making selection of a candidate on the post of Registrar not only the marks obtained by the student but also the aptitude of the candidate in the subject of his choice and his general knowledge are also taken into consideration. Besides, the Selection Committee keeps before it the data regarding qualifications, marks, experience etc. of the candidate appearing before it. A chart of factual data is prepared and supplied to each of the members of the selection Committee in advance. At the time of interview, besides varifying the facts stated in the chart, questions are put about their subjects the thesis they might be preparing and the experience they may have gained, and from all this, an over-all assessment is made.
6. In addition to above factors, weightage is given to the experience of the candidates at the municipal hospitals. The reason for giving weightage' to the experience of the candidates in the municipal hospitals is that the selection of such candidates would be more in the interest of the institution and the patients. A Registrar's post is a very responsible post; it is not a clerical post. It requires co-ordination between the consultants and the House staff in day-to-day treatment of the patients. A candidate who has already worked as a House Medical Officer at the municipal hospital would be an experienced hand/ well conversant with the routine working of the institution having already established a rapport with the consultants as well as the staff. His work and aptitude for the subject are better known to employers than that of an outside candidate. These are the various considerations which weigh for making selection of candidates for the posts of Registrars in the municipal hospitals. All these factors are generally taken into consideration and have all along been taken into consideration in the past and had weighed with the selection Committee while making selection on 28th June 1974.
Later on in paragraph 10 of his affidavit-in-reply Dr. Joshi has made explicit the reasons which weighed with the appointing authority for preferring respondent No.7 to the petitioners. This is what he has to say:
10. So far as the Registrar's post in Medicine is concerned, three posts were to be filled in, and the following persons have been appointed on these posts:
1. Dr. A.G. Patel
2. Dr. R.K. Bavishi
3. Dr. R. G. Agarwal
Out of the aforesaid three candidates, selection of only Dr. R.G. Agarwal (Respondent No. 7 herein) is challenged in the present petition even though the marks obtained by Dr. A.G. Patel and Dr. Bavishi have been less than that of the petitioners in the subject of medicine. Out of the various candidates, Dr. R.G. Agarwal had put in one term on the House job at the municipal hospitals, whereas none of the petitioners had done any House job at the municipal hospitals. The Superintendents of the Municipal Hospital were satisfied with service record of Dr. R.G. Agarwal as well as his cordial relations with other members of the staff, and keeping these considerations in mind, Dr. R.G. Agarwal was selected as Registrar in Medicine in preference to the other candidates. Hereto annexed and marked Annexure II is a comparative statement of the candidates who had offered themselves for appointment on the posts of Registrar in Medicine. In this case also experience at Municipal Hospitals was not the only criteria but service record of such candidates was also considered while making selection.
5. Now, it is an admitted position on the part of the respondent Municipal Corporation that no rules were in existence, for making appointments to the post of Registrar. Does it mean that the Corporation can appoint any one on this post according to its pleasure or fancy? of course not. Municipal Corporation of Ahmedabad is obliged to conduct its affairs in relation to employment or appointments so that it does not violate Articles 14 and 16 of the Constitution of India for it is a 'State' within the meaning of Article 12. Article 16(1) extends to the citizens of India the guarantee that there shall be equality of opportunity in all matters relating to employment or appointment to any office under the State. It was urged on behalf of the respondents that since only a stipend is awarded to the appointees to the posts of Registrars, Article 16 would not be attracted. This argument hag merely to be stated to be rejected for Article 16(1) takes within its sweep every 'employment' and 'appointment' to the office under the State. Whether the employment or appointment carries a 'salary' or 'stipend' is, therefore, altogether immaterial. Surely the incumbents of the post of Registrar who are under the disciplinary and supervisory control of the Municipal Corporation of Ahmedabad do not cease to be 'employed' or 'appointed' to the office of Registrar merely because the remuneration paid to them is styled as stipend and not salary.
6. The Seminal question (one of principle) is whether it is sufficient that the matter of making appointments to such posts is entrusted to a Committee-sufficient in order to meet the demands of and to live in peaceful co-existence with the commandments enshrined in Articles 14 and 16. If this much (and no more) is deemed sufficient, the purposeful protection afforded by these Articles will be emptied of their vital content and equality of opportunity in regard to employment or appointment to public offices will be reduced to a purposeless platitude. It is of the essence of the constitutional guarantee that (1) appointments are made solely with an eye on selecting the best equipped and most suitable personnel and (2) that complete objectivity and impartiality is maintained in the matter of selections so that 'equal opportunity' Clause is not only observed in letter and spirit in practice but also 'appears' to have been so observed in order that the appointments inspire the confidence of the people as also of the contestants in the field. This dual test can be satisfied provided the Selection Committee has some norms or guidelines (whether imposed or self-prescribed) staring them in their eyes. A principle oriented approach would in the end-result convince one that norms or guidelines are very much essential from the following standpoints:
(1) The criteria are well defined and well known to all the members of the Selection Committee so that all of them measure with the same yardstick and not with different weights and measures.
(2) The same criteria is applied in the case of all candidates so that all are selected or discarded by same standards.
(3) The same criteria is uniformly applied from year to year unless a deliberate modification is made in the light of new developments and/or past experience.
(4) The criteria are capable of being ascertained if occasion so demands.
(5) Members of Selection Committee are rendered immune from external pulls and pressures as also from inner sub-conscious pulls, pressures and predelictions.
(6) Selectors inform themselves and there is a guarantee that only relevant factors enter into the decision and all irrelevant factors are excluded.
(7) Same extent of weightage within known parameters is accorded to every individual criterion uniformly inter se amongst contestants from year to year.
7. Appointments made without regard to these salutary principles can scarcely inspire confidence that the equality principle has been faithfully observed for in the absence of these norms how can any one posit that extraneous considerations like influence, pull, likes, dislikes, favourtism, nepotism casteism, communism, arbitrariness and caprice have not operated on the mind, of the selectors. It may be reiterated that not only the equality principle should in fact operate it must also appear to have operated and unless there are guidelines, is there any guarantee that the selector is not carried away by any of the aforesaid non-germane consideration, or even by bias arising from impressionableness? For instance one who is well-dressed, or has better department, or a winning smile or more aesthetic features, or better outward manners or one who shares' he same interests, adores the same author, hero, or saint as does Who is not lunate in these matter though he may be more gifted, better equipped for the work and I suitable, then the forme, Unless some are framed some lines are laid down, there would be inherent dangers in the arising from the following circumstances:
(1) It would not be known why the claims of doctors who secured higher marks are over-ridden by those who have secured lesser marks and the former would feel frustrated, become bitter toward the administration and the society and their outlook towards it would become coloured by scepticism and loss of faith in all institution.
(2) The administration which might have acted in good faith for the, interest of all concerned would be exposed to the charge of yielding to disclosed or undisclosed extraneous influences or consideration?
(3) There is no guarantee that the same policy is uniformly followed year to year. No visible accord is established with the.
(4) There is no assurance that the same criterion.
(5) It cannot be demonstrated that the best or most suitable candidates were selected solely on merits on the same criteria uniformly applied in past as well as present.
It may also be mentioned that so far as B.J. Medical College and the Civil Hospital run by the Government are concerned, there are inron-clad, rigid, and inflexible rules which make the marks obtained in a particular subject to be the sole criterion for appointment of Registrars. A copy of the rules has been placed on record along with the affidavit of petitioner No. 2 sworn on September 2, 1974. Rule 8 is the relevant rule. It is in the following terms:
8. The selection of the candidates for appointment to be made subject-wise on the basis of categories shown arranged in the order of preference in selection.
(a) Those who have passed the final the first attempt. B'S' Examination in all the subjects at.
(b) Those who have passed the whole examination at the subject at the first attempt, mmatlon at second attempt but passed in.
(c) Those who have passed the whole examination as well a, the second attempt, as we' as the subject in the second attempt.
(d) Those who have passed the whole examination in the third attempt but passed the subject in the second attempt.
Foot-note:
If in the same category the marks obtained in the subject, by two or more candidates are equal, the selection will be decided on the basis of the total marks obtained in the whole examination. In the event of tie in the total marks also, the selection will be made on the basis of the total marks obtained at the 1st and 2nd M B.B.S. Examination.
It is unfortunate that the Municipal Administration has not considered it desirable to frame any such rules.
8. The emergent conclusion is that it is essential that there are known norms or principles impressed on the mental screen of each selector and the selections are made broadly in conformity there-with. If there are none, the selections would be more readily open to scrutiny in order to ascertain whether or not Articles 14 and 16 have been honoured. In the light of these principles the appointments made by respondent No. 1-Corporation in the fact-situation traced earlier may now be subjected to scrutiny. When appointments are being made to posts which are associated with postgraduate studies at a point of time when the newly graduated doctors are on the threshold of their post-graduate education, the most important, reliable, and safe criterion is provided by the academic achievement reflected in the marks obtained in the particular subject or speciality at the final M.B.B.S. Examination. Just as performance in the relevant subjects like Biology etc. at the qualifying Examination is treated as of utmost importance in the matter of giving admission to medical course, the performance at the final M.B.B.S. Examination provides a most reliable and safe criterion for the purposes of appointments to the posts of Registrars. It must be realised that these are not appointments made at the hospitals for the purpose of securing the services of permanent doctors on their staff. The vital consideration as regards imparting training to and teaching the post-graduate students is also present. That this aspect is of vital significance cannot be denied for the Municipal Corporation itself has accorded recognition to it by adverting to it in the public notice inserted by it whilst inviting applications to these posts (see Annexure 'A'). This notice in terms refers to Smt. Shardaben and L.G. Hospitals as the teaching hospitals. And the applications are invited by these teaching hospitals to the posts of Registrars. One of the necessary qualifications is that the candidate must possess a Graduate or Post-Graduate qualification and must have experience of Housemanship of twelve monthe in their respective branch. The candidates become eligible after graduation if they have experience by way of Housemanship of twelve monthe. At that stage the Hospital is not appointing a doctor permanently on its regular staff. At that stage the candidates are fresh medical graduates who are aspiring for a post-graduate Degree or Diploma. Of necessity, therefore, at that juncture the most reliable and safe guide line is provided by the criterion of marks secured in the subject concerned at the final M.B.B.S. Examination.
9. The question then is whether the appointment of respondent No. 7 made in the aforesaid circumstances in the absence of any such rules can be successfully challenged by the petitioners on the ground that it Is arbitrary, unprincipled, and violative of Articles 14 and 16 of the Constitution of India. As mentioned earlier, petitioners Nos. 1 to 3 have obtained very many more marks that respondent No. 7 in the speciality of Medicine at the final M.B.B.S. Examination. Petitioner No. 1 has obtained 64. 75% marks, petitioner No. 2 has obtained 60. 25% marks as against 53% marks obtained by respondent No. 7. Petitioner No. 1 has obtained 47 marks more than respondent No. 7. Petitioner No. 2 has obtained 31 marks more than respondent No. 7. Whereas petitioner No. 3 has obtained 29 marks more than respondent No. 7 out of a total of 400 marks in the speciality of Medicine. Why has the Administration then disregarded their claim and preferred respondent No. 7?
10. The selection of respondent No. 7 and his appointment to the post of Registrar in Medicine made by respondent No. 1 in the face of this fact situation has been seriously questioned on the following grounds:
(1) An irrelevant criterion as regards experience at one of the Municipal hospitals (other than the one at which he was ultimately appointed) has crept into the consideration of the Staff Selection Committee and it has been wrongly treated as the sole decisive factor by them.
(2) A very relevant consideration (if not the most relevant one), namely academic performance and brilliance has been altogether ignored.
(3) In the name of giving weightage to those with experience at one of the Municipal hospitals, the petitioners have been altogether excluded from consideration.
Now the stand taken by respondent No. 1 is made explicit by the passages quoted from the affidavit-in-reply of Dr. Joshi in the earlier portion of the Judgment. And the only factor which seems to have buttressed the decision in favour of respondant No. 7 appears to be that the respondent No. 7 had put in one term as Houseman at one of the Municipal hospitals and that respondent No. 7 had cordial relations with other members of the staff. As against this, the petitioners had not worked as Housemen at any of the Municipal hospitals. Is this a valid or germane consideration? As mentioned in paragraph 6 of the affidavit-in-reply of Dr. Joshi which has been quoted earlier, 'the reason for giving weightage to the experience of the candidates in the municipal hospitals is that the selection of such candidates would be more in the interest of the institution and the patients. A Registrar's post is a very responsible post; it is not a clerical post. It requires co-ordination between the consultants and the House staff in day-to-day treatment of the patients.' The stand taken is that such a person would be well conversant with the routine of the working of the institution and would have established rapport with the consultants as well as the staff. Now, so far as respondent No. 7 is concerned, it is clear that this dimension is altogether irrelevant having regard to the fact that it is an admitted position on record that while respondent No. 7 has worked as a Houseman at one of the Municipal hospitals, namely, Shardabai General Hospital for one term, he has been appointed as Registrar at L.G. Hospital, Maninagar, which is altogether a different hospital. The question as regards establishing rapport with the consultants as well as the staff and being familiar with the routine etc. therefore cannot and does not arise. So also the factor about 'cordial' relationship with the other members of the staff adverted to in paragraph 10 of the affidavit-in-reply of Mr. Toshi becomes altogether irrelevant for respondent No. J had never worked at the L. G. Hospital, had no occasion to establish rapport with the consultants or cordial relations with the staff at the L.G. Hospital. If at all he had established such factors only in relation to the staff at some other Hospital, namely, Saraspur Hospital. How can it then be validly contended that the appointment of respondent No. 7 was on account of some relevant consideration? The first submission is, therefore, well founded. Not only an irrelevant factor has operated, it has operated to the exclusion of all other relevant factors. Since there is no other relevant consideration which speaks in favour of respondent No. 7 as against the petitioners from any rational or understandable point of view, the exasperation of the petitioners (who have obtained about 64.75% marks in the case of one and 60.75% in the case of other as against 53% in the case of respondent No. 7) can well be understood. It is not difficult for one to imagine the agony and frustration of a brilliant candidate like petitioner No. 1 who has secured 64.75% marks in Medicine as against the respondent No. 7 who has secured only 53% if his claim to be appointed as Registrar is disregarded or overridden on irrelevant grounds not based on any principle. The question is, would it be right to disregard the claim of such a brilliant student (and the others who are less brilliant than petitioner No. 1 but much more brilliant than respondent No. 7) on such irrelevant ground without exposing the selection to the charge of being arbitrary, unprincipled and violative of Articles 14 and 16 of the Constitution of India? As pointed out earlier, the ground urged by Dr. Joshi in his affidavit-in-reply is altogether irrelevant. Can the selection so made then be sustained? To do so would be to sow seeds of bitter frustration and disillusionment in the hearts of medical students aspiring for post-graduate courses who are going to be entrusted with the care of the very lives of citizens. To do so would be to kindle the fire of discontent and make them lose faith in the establishment, in the justness of the social system, and the credibility of the society at large instead of lighting the fire of selfless service and dedication to the cause of the noble profession of medicine in the service of the suffering humanity. The necessity to do away with arbitrariness in a system governed by rule of law has been impressed upon the establishment in S.G. Jaisinghant v. Union of India and Ors. : [1967]65ITR34(SC) , by the Supreme Court speaking through Ramaswami J. in the following terms:
In this context it is important to emphasize that the absence of arbitrary power is the first essential the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey-'Law of the Constitution-' Tenth Edn. Introduction ex). 'Law has reached its finest moments,' stated Douglas, J. in United States v. Hunderlich (1951) 342 US 98, when it has freed man from the unlimited discretion of some ruler. Where discretion is absolute, man has always suffered'. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfied stated it in classic terms in the case of John Wilkes, (1770) 4 Burr 2528 at p. 2539 'means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague or fanciful.
This necessity is all the greater when one is dealing with youth and students and those who are on the doorsteps of post-graduate studies in medical courses. To ignore this aspect is to make them septics and make them bitter against the society and to turn them away from a way of life imbued with idealism and selflessness. It would make them lose faith in the selecting body and the establishment and push them towards acceptance of overseas appointments which promise greater financial rewards and result in brain-drain. Now, even though Dr. Joshi, the member of the Staff Selection Committee, who had filed the aforesaid affidavit had taken the aforesaid stand in the first affidavit filed by him, later on an altogether different posture was assumed by him by his supplementary affidavit filed during the course of the arguments on September 20/22, 1974. To quote him in his own words:
I say that it is a recognised practice in the medical teaching hospitals that experienced hands in the said hospital are as far as possible appointed as registrars in the said hospitals, and only if such experienced hands are not available then outsiders are appointed as registrars. I say that this practice is being followed since many years to the knowledge of all concerned. I say that such practice is being followed in Civil Hospital, Ahmedabad, V.S. Hospital, Ahmedabad, Sayajirao Hospital, Baroda and even in Municipal Hospitals in Bombay. I say that even in some foreign countries, this practice is being followed. I say that, therefore, weightage being given to experienced hands in Municipal Hospitals in respect of appointments as registrars is a very relevant factor and accepted as such, every-where. I say that this preference or weightage is necessary for the smooth and efficient working of Municipal Hospitals. I say that if such weightage is not given Municipal Hospitals particular Shardabhai General Hospital and L.G. Hospital will find it difficult or may be impossible to secure the services of Housemen in these Hospitals. I say that such a practice is being followed by Municipality and is known to all concerned, I say that petitioner No. 5 could have obtained Housemanship in V.S. Hospital but he chose to be a Houseman in L.G. Hospital so that he may get the advantage of such practice in selection of registrars in Municipal Hospitals in future. I say that experience in a Municipal Hospital as a Houseman is a very relevant factor to be taken into consideration in making appointments as registrars in Municipal Hospitals.
Two points emerge from the supplementary affidavit filed by Mr. Joshi, First, that they have followed a practice which is being followed by other teaching hospitals, and secondly, that if this practice is not followed, it far to secure candidates for the post of Houseman in their Hospital. It is difficult to comprehend how these two aspects could have been overlooked by Dr. Joshi when he filed the first affidavit sworn on July 15, 1974. It would go to show that these aspects were not present in the mind of Dr. Joshi when he filed the first affidavit. These aspects could not then have been present in the mind of the members of the Staff Selection Committee at the time of making appointments either. The inherent dangers referred to earlier in the course of this Judgment become more pertinent in this context. The members of the Staff Selection Committee would change from year to year. It is strange that they do not have the same criterion and considerations before them from year to year and that there is no guarantee that the same criterion is applied in every branch and in respect of appointments in the same branch vis-a-vis all the candidates. The prevalence of such practice has been denied by the other side in an affidavit filed subsequent to the supplementary affidavit filed by Dr. Joshi. Be that as it may, one thing stares us in the eye. No such consideration was present in the mind of Dr. Joshi when the first affidavit was filed. At that point of time consideration regarding rapport with the consultants and the staff and cordial relations with the members of staff was the only aspect which was emphasized and a reference was made to 'weightage'. And when this aspect is closely examined there remains no room for doubt that the second and the third submissions are as meritorious as the first one. What respondent No. 1 has done is that in the name of according weightage to respondent No. 7 on the ground that he had experience at one of the Municipal hospitals and had 'cordial' (what does this mean?) relations with the staff it has been made a sole and exclusive criterion for appointment. And as a result of this the criterion of academic performance and relative brilliance has altogether been excluded. Petitioners have been denied entry into the realm of consideration and the door has been shut in their face notwithstanding their acknowledged brilliance under this mistaken approach. If prior experience as Houseman at one of its own hospitals was in truth the sole criterion they had all the while adopted, what prevented them from saying so in advertisement, Annexure 'A', (which does not say so) or in the first affidavit before the Court supported by the statistics of the past years and the record of appointments made under this principle? (This of course does not mean, it may be remarked in parenthesis, that it would have been justified in principle)- Again if weightage is to be accorded, its extent and parametres must be clearly defined so that weightage principle is known to themselves and others and the same quantum of weightage is extended in all branches, inter-se between contestants of the same branch, and from year to year. Otherwise complete arbitrariness can be introduced masquerading in the name of weightage. Different weightage may be given in different branches and even as between contestants in the same branch, not to speak of adopting of different standards from year to year. And on occasions weightage can be construed as meaning the sole criterion for selection to the exclusion of all other criteria, as has been done in the case of respondent No. 7. What is meant by weightage does not appear to be clearly comprehended even by Dr. Joshi who was one of the members of the Staff Selection Committee which made the appointment. It, therefore, appears that the appointment of respondent No. 7 was not made in accordance with any principle known or uniformly applied by the respondent Corporation from year to year or amongst the different branches or amongst the candidates of the same branch Inter se. If it was the contention of the respondent Corporation that always in the past so long as a Houseman of their own Hospital was available, the others were excluded, they could have said so in clear terms and could have established it by producing the relevant records before the Court. They could have referred for instance to the record of the past 10 years and shown that though candidates of outstanding merits were available, their claims were always disregarded in the past in respect of all the branches and in regard to the candidates in the same branch uniformly in the past. The fact that the respondent Corporation has not placed on record any such affidavit or material clearly goes to show that they themselves do not know what was their practice and what criterion was applied by them in the past with regard to the various specialities and whether there was any uniformity therein. This is a very deplorable state of affairs for a public body like the Municipal Corporation of Ahmedabad. It is no doubt true that the selection is to be made by the Staff Selection Committee of the Corporation and not by the Court. But if the Staff Selection Committee has not made the selection in accordance with any principles known to them and known to others and in accordance with any uniform practice, the appointments made by them become vulnerable to the charge of being arbitrary, capricious and being violative of Articles 14 and 16 of the Constitution of India.
11. So far as the appointment of respondent No. 7 it concerned therefore, it must be quashed and set aside. It must, however, be realised that respondent No. 7 himself is not at fault and deserves sympathy for he was not responsible for the selection made by the Staff Selection Committee in an objectionable manner. Care, therefore, requires to be taken to ensure that no unnecessary suffering is caused to him. 1 propose to give a suitable direction in order to ensure this at the appropriate stage.
12. It is now time to turn to the case of petitioner No. 5 Dr. V.B. Desai. He had applied for the post of Registrar in Gynaec in response to public notice issued by respondent No. 1 Municipal Corporation (Annexure 'A'). He passed his final M.B.B.S. Examination in 1972 in first attempt with 129 marks out of 200 in the subject of Gynaec. That is to say, be secured 64. 5% marks in the said subject. It will be recalled that three appointments were to be made in regard to the post of Registrarship in Gynaec. Respondent No. 1 Corporation appointed respondents Nos. 8, 9 and 10 to fill these three posts. The application for appointment made by petitioner No. 5 was rejected. From the standpoint of marks secured at the final M.B.B.S. Examination in the subject or Gynaec, the following tabular statement will show their respective achievement:
-----------------------------------------------------------------------Name. Marks in Experience Difference ofSpeciality. marks.-----------------------------------------------------------------------1. D.V.D. Desai 129/200(Petitioner No. S)2. Dr. K.M. Shah 127/200 2(1%)(Respondent No. 8)3. Dr. Miss Geeta 120/200 9(4 1/2%)Sadhwani.(Respondent No. 9)4. Dr. Miss Kenya Urmila 126/200 3(1 WA)(Respondent No. 10)-----------------------------------------------------------------------
It will be seen that petitioner No. 5 Dr. Desai has secured the highest number of marks. But then the difference between the marks obtained by him and the marks obtained by the others is very small. Respondent No. 8 Dr. K.M. Shah who secured the appointment, obtained 127 out of 200 marks i.e. 63.5% as against 64.5% secured by the petitioner. The difference is only of the order of 1%. Respondent No. 9 Dr. Miss Sadhwani secured 60% marks. The difference between the percentage secured by the petitioner and the percentage secured by respondent No. 9 is of the order 4 1/2%. So far as respondent No. 10 Dr. Miss Kenya is concerned, the difference in percentage is of the order of only 114% Now, so far as respondents Nos. 9 and 10 are concerned, there is one factor which speaks in their favour on examining their merits vis-a-vis petitioner No. 5 Dr. Desai. It is an Admitted position that respondents Nos. 9 and 10 both had secured postgraduate Diploma of D.G.O. at first attempt and they were equipped with this additional qualification at the point of time when their selection was made. As against this, petitioner No. 5 had only registered for the M.D. Degree course and the D.G.O. Diploma course. At the material point of time, therefore, respondents Nos. 9 and 10 had definitely a better qualification for being-appointed. Both of them had already equipped themselves for the post-graduate Diploma in Gynaecology. The circumstance that the respondent No. 9 had obtained 4 1/2% marks less and respondent No. 10 had obtained 4 1/2% marks less than petitioner No. 5 at the M.B.B.S. Examination thus loses its importance. Since the Staff Selection Committee have appointed to the post of Registrar better equipped candidates than the petitioner No. 5, it cannot be said that they have acted arbitrarily or capriciously. The appointments of respondents Nos. 9 and 10 cannot be struck down merely on the ground that the Staff Selection Committee had not formulated rules or norms to guide themselves. There is no justification for quashing the appointments of respondent Nos. 9 and 10 under the aforesaid circumstances notwithstanding the fact that petitioner No. 5 had secured higher marks in the subject of Gynaec at the final M.B.B.S. Examination.
13. The grievance of petitioner No. 5 vis-a-vis respondent Nb. 8 Dr. K.M. Shah may now be examined. Petitioner No. 5 has obtained 129 marks as against 127 marks secured by respondent No. 8. The difference of marks between them is of the order of 2 marks out of 200 i.e. of the order of 1% only. It is disclosed by the affidavits and the material on record and it is not disputed that respondent No. 8 had worked as a House Surgeon in Gynaec for six monthe at the Saraspur Municipal General Hospital and was at the material time working as the Casualty Medical Officer at the Saraspur Hospital. These two circumstances have been taken into account by the Staff selection Committee in preferring respondent No. 8 to petitioner No. 5. It is not possible to say that the appointment of respondent No. 8 is arbitrary or capricious merely because of a small difference of 1%. Even if minimum weightage is given to respondent No 8. in regard to these two factors, he could have been preferred by the Staff Selection Committee. Under the circumstances, having regard to the very small margin of difference between the relative merits of these two candidates and having regard to the fact that there was one other, circumstance which came to the aid of respondent No 8 to tilt the balance in his favour, the appointment of respondent No. 8 cannot be quashed. It must be realised that the selection and the appointment has to be made by the competent authority of respondent No. 1 Corporation and not by this Court. Merely because no rules of norms were framed, the appointment cannot be quashed unless it can be posited that having regard to all the circumstances the selection is arbitrary capricious and violative of Articles 14 and 16 of the Constitution of India In the present case, the matter is so very well balanced, that it would not be proper for the Court to upset what has been done by the Staff Selection Committee. So far as the petition of petitioner No. 5 Mr. Y.B. Desai is concerned, under the circumstances of the case, it must fail.
14. Article 226 of the Constitution of India empowers the Court to issue orders or writs including writs in the nature of habeas corpus, mandamus prohibition, quo warrento or ceritorari or any of them for the enforcement of the fundamental rights. I, therefore; see no substance in the argument of the learned Counsel for the respondents that a writ quashing the appointment of respondent No. 7 cannot be issued in exercise of powers under Article 226.
15. Reliance has been placed by the learned Counsel on paragraph 33 of Halsbury's Law of England, Fourth Edition, wherein the law as regards fettering of discretion by rules has been stated in the following terms:
33. Fettering discretion by own rules. A public body endowed with a statutory discretion may legitimately adopt general rules or principles of policy to guide itself as to the manner of exercising its own discretion in individual cases, provided that such rules or principles are legally relevant to the exercise of its powers, consistent with the purpose of the enabling legislation and not arbitrary or capricious. Nevertheless, it must not disable itself from exercising a genuine discretion in a particular ease directly involving individual interests; hence it must be prepared to consider making an exception to the general rule if the circumstances of the case warrant special treatment. These propositions, evolved mainly in the context of licensing and other regulatory powers, have been applied to other situations, for example the award of discretionary investment grants and the allocation of pupils to different classes of schools. The amplitude of a discretionary power may, however, be so wide that the competent authority may be impliedly entitled to adopt a fixed rule never to exercise its discretion in favour of a particular class of person; and such a power may be expressly conferred by statute.
16. In my opinion, there is nothing in this passage which helps the respondents. The essence of the principle stated therein appears to be that even though there may be wide discretion in a public body, it can frame general rules or principles of policy to guide itself and that if such rules are framed, it would not amount to fettering its own discretion. So also reliance was placed on the principle laid down in Shri Rama Sugar Industries Ltd. v. State of Andhra Pradesh and Ors. 1974 Sales Tax Cases 277. In my opinion, there is nothing in this decision which helps the respondents. Even so for the sake of record, I refer to the citation as desired by Counsel for the respondents.
17. It is now time to consider the question as regards the nature of the direction to be issued. I will first consider the aspect as regards evolving a formula to protect the interest of respondent No. 7 so far as possible having regard to the circumstances mentioned earlier. The appointment of respondent No. 7 is for one year. At present he has completed three month. It would, therefore, be just and fair to enable him to acquire experience of atleast six months. Even if, therefore, someone is appointed in place of respondent No. 7, respondent No. 7 may be allowed to continue till the expiration of six month from the date of his appointment and the new incumbent may be directed to take over charge on the completion of the period of six month. So far as the appointment of respondent No. 7 is concerned, it must be quashed. However, none of the petitioners can be appointed by this Court in his place having regard to the fact that selection will have to be made by the Staff Selection Committee. It is not a function which can be discharged by the Court. The Staff Selection Committee is, therefore, directed to consider the question of appointment to one post of Registrar in the speciality of Medicine afresh. It will be necessary for them to prescribe for themselves rules containing general norms or guidelines for making such appointment. These principles or norms must be first determined and the members of the Staff Selection Committee must inform themselves of these principles and make the principles public. Thereafter they are directed to proceed to hold a meeting of the Board of the Selection Committee and to make a fresh appointment from out of candidates who had applied in response to the notice i.e. from out of petitioners Nos. 1 to 4 and respondent No. 7 who had applied in response to notice, Annexure 'A' issued by the Municipal Corporation for filling up the vacancy. The new appointment will have to be made before the expiry of the six months' term of respondent No. 7 so that the new appointee can take charge as soon as respondent No. 7 is relieved in pursuance of this judgment and order. It is not for this Court to in terms lay down the guidelines or to prescribe the formula for fixing the norms for appointments. Suitable norms in consonance with the relevant considerations will have to be evolved by the Staff Selection Committee or the Municipal Administration so that the same inspire the confidence of all the citizens and more particularly the doctors prosecuting their studies for post-graduate courses and aspiring for appointments to these posts. The aspect relating to their performance at the final M.B.B.S. Examination in the relevant subjects must of course be accorded supreme importance. If the authorities consider it desirable to introduce a consideration as regards according some weightage to those who have worked as Housemen at the Municipal hospitals concerned where appointment is sought, the nature, extent and parameters of the weightage must be clearly defined. It must, however, be made clear that this last observation must not be construed as if this Court approves of the principle of according weightage on this ground.
18. And now the post-script. Whatever is the result and whether or not any of the petitioners secures an appointment as a sequel to these proceedings, atleast something would have been achieved. There will be a known system (known to the appointing authority as also to those aspiring for appointments and to the citizens at large) for appointment to is vital post which will be uniformly followed now and in future and do some amount of good to the profession as well as to the institutions concerned and will inspire the confidence of the people at confidence of the people at large.
19. The petition of petitioners Nos. 1 to 4 is partly allowed The appointment of respondent No. 7 Dr. R.G. Agarwal to the post of Registrar Medicine in the L.G. Hospital is quashed with effect from the equation of six monthe from the date of his appointment. Respondent No. 1 Municipal Corporation and its Staff Selection Committee are directed to make a fresh selection in accordance with the guidelines devised by themselves in the light of the observations made herein before the term of respondent No. 7 expires in accordance with the aforesaid order that is to say on the expiry of six month from the date of his appointment which is being quashed. The petition in so far as it is directed age the appointment of rest of the respondents appointees fails and is dismissed. The petition m so far as petitioner No. 5 is concerned fails. Rule is made absolute to the aforesaid extent. There will be no order regarding costs.