Dr. Vijayalakshmi Basavaraj Working as Deputy Director (Technical), Ali Yavar Jung National Institute for Hearing Handicapped Vs. the Secretary (Health), Government of India, Ministry of Health and Family Welfare, - Court Judgment

Excerpt:

.....of the constitution of india - petitioner contended that abandoning the processing of applications was totally mala fide and biased action and the respondent-institute was state within the meaning of article 12 - respondent contended that the institute was an autonomous body exclusively meant for research and service in the field of speech and hearing and was not state within the meaning of article 12 - managerial control of central government was pervasive and total - prevailing service conditions and rules of the employees were governed only by the service rules of the employees of government of india - held, third respondent is 'state' and its action can be examined by the court in the exercise of writ jurisdiction - in view of the existence of the element of personal interest of the fourth respondent, the principle of bias is squarely attracted as the fourth respondent is definitely an interested person in the matter of taking a decision for appointment - decision arbitrary and mala fide - all subsequent action declared as illegal and quashed - direction issued to finalise the selection process - writ petition allowed - indian evidence act, 1872.section 3: [c.k. thakker &..........issued by the respondent no. 3-all india institute of speech & hearing, mysore [for short the institute], inviting applications for fitting up the post of director at the institute indicating the essential qualification for the aspiring applicants, desirable qualification, age limit, last date for receipt of the application and allied matters. petitioner was one among the aspiring applicant for the said post.2. it is averred in the writ petition that the respondent no. 3-institute had intimated the petitioner among other applicants who were qualified to fill up the post to attend the interview to be held on 22-11-2004. it is also averred that including the petitioner, six other candidates attended the interview on this date. the version of the petitioner is that her performance in the interview was quite good, in fact, far above the performance of other candidates and that she was likely to be selected etc.,; that as the petitioner did not receive any intimation from the respondent-institute as a sequel to the interview being conducted, had addressed several representations dated 4-1-2005, 29-1-2005 and 13-3-2005 [copy at annexures-e1 to e3].3. further averment is that at that.....

Judgment:

ORDER

D.V. Shylendra Kumar, J.

1. This writ petition arises in the context of a public notification dated 30-3-2004 [copy at Annexure-B] issued by the respondent No. 3-All India Institute of Speech & Hearing, Mysore [for short the Institute], inviting applications for fitting up the post of Director at the Institute indicating the essential qualification for the aspiring applicants, desirable qualification, age limit, last date for receipt of the application and allied matters. Petitioner was one among the aspiring applicant for the said post.

2. It is averred in the writ petition that the respondent No. 3-Institute had intimated the petitioner among other applicants who were qualified to fill up the post to attend the interview to be held on 22-11-2004. It is also averred that including the petitioner, six other candidates attended the interview on this date. The version of the petitioner is that her performance in the interview was quite good, in fact, far above the performance of other candidates and that she was likely to be selected etc.,; that as the petitioner did not receive any intimation from the respondent-Institute as a sequel to the interview being conducted, had addressed several representations dated 4-1-2005, 29-1-2005 and 13-3-2005 [copy at Annexures-E1 to E3].

3. Further averment is that at that point of time reasonable apprehension which the petitioner had developed was that the respondent No. 4, the present Director of the Institute in the acting capacity being on deputation from the National Institute Of Mental Health and Neuro Sciences was stalling the finalisation of selection amongst the candidates interviewed for the post as the person so selected win be displacing the respondent No. 4. The pleading in this regard is at para-3 of the writ petition, which reads as under:

3. Though the appointment of 4th respondent an deputation was purely a stop-gap arrangement and directions were issued to fill up the post of Director on a regular basis, the entire process of recruitment to the post of Director stowed down the moment the 4th respondent took over as Director on in charge basis. The 4th respondent not only successfully continued as in-charge Director beyond the permissible limit of three years but also successfully stalled recruitment to the post of Director on am regular basis. The outer limit for continuation of an appointment on deputation is five years. In the meanwhile, the 4th respondent had also received a proforma promotion in his parent institute as Professor of Speech Pathology. He, however, was drawing the pay scale to which he was entitled to in his parent institute even while working as in-charge Director in the 3rd respondent-institute. Finally on 30th March, 2004, an advertisement was issued inviting applications far the post of Director. A true copy of the same is produced herewith and marked as Annexure-B. A true copy of the OM putting the 4th respondent in charge of the post of Director on 17-4-2000 is produced herewith and marked as Annexure-C. DOPT, Government of India, has issued instructions from time to time regulating transfer on deputation/foreign service. The one governing the field since 1994 is the OM dated 5-1-1994, a true copy of the same is produced herewith and marked as Annexure-D. As could be seen from the provisions of the said OM, paragraph 8 clearly stipulate the period of deputation shall be subject to a minimum of three years in all cases. Exception is made only where the recruitment rules provide otherwise. The said paragraph also comes down heavily on further extensions and has taken the matter of continuation beyond an outer limit of five years out of the purview of the administrative ministry. No continuation beyond the period of five years even in the stipulated circumstances can be granted, unless it is approved by the DPOT. In the instant case, the recruitment rules of the 3rd respondent-institute do not authorize filling up of the Directors post by deputation on a regular basis. The one and the only method of recruitment stipulated in the Rules is by director recruitment. That being the position, the very appointment and continuation of the 4th respondent as Director of the 3rd respondent-institute is wholly without authority of law and is ultra vires the very powers conferred in the matter of transfer on deputation.

4. It is also averred that while the applications pursuant to the public notification as per Annexure-B, after interviewing the eligible candidates had not been finalised, even without concluding the same, the respondent No. 3-Institute issued yet another public notification dated 24-6-2005, carried out in the Indian Express, News Daily, dated 30-6-2005 [copy at Annexure-A], yet again inviting applications for the very post of Director indicating the essential qualification for non-medical persons as also the desirable Qualifications, scale of pay and such other related matters.

5. It is thereafter the petitioner having made further enquiries and having learnt that the respondent No. 4 while was not an applicant on the earlier notification, but was an applicant in response to the subsequent notification which according to the petitioner has been tailor-made to suit the convenience of respondent No. 4 and contending that the issue of subsequent notification for the very post, while the applications called for and received earlier and processed pursuant to the earlier notification having not been finalised, is illegal, a biased act on the part of the respondents; that the subsequent notification inviting applications is not valid in law; that the respondents are bound to finalise the applications that had been processed pursuant to the earlier notification at Annexure-B dated 30-3-2004 and seeking for relief in this context for issuing directions and with further averment that the respondent No. 4 who had come to the respondent No. 3-Institute as a Director on deputation has over stayed his deputation period; that he has continued to remain in the Institute beyond the permitted time; that the respondent No. 4 has developed vested interest in the post; that he has been acting not only to the detriment of other persona aspiring to the post but also to further his own interest; that continuation of the respondent No. 4 in the post on deputation basis for a period exceeding five years which as of now even touches six years as the respondent No. 4 had been posted as a Director on deputation in terms of order dated 17-4-2000 by the official memorandum issued by the Ministry of Health and Family Welfare, Government of India [Copy at Annexure-C] is beyond all permissible limits; that the deputation could be for a maximum period of three years and the stay of the respondent No. 4 in the Institute on deputation for a period beyond three years and at any rate beyond further extended period of two years is not permitted in law; that the respondent No. 4 is virtually a usurper of this office, squatting on the post for a period beyond the permitted time and therefore while necessary direction should be issued to direct the repatriation of the respondent No. 4 to his parent department, namely, National Institute Of Mental Health and Neuro Sciences etc., the subsequent advertisement issued by the respondent No. 3-Institute for fining up the very post of Director in terms of the advertisement dated 24-6-2005 at Annexure-A is one liable to be quashed and that further direction is to be issued to the respondents to complete the selection process in terms of advertisement at Annexure-B of all the applicants who had been interviewed and for granting such other incidental reliefs in the writ petition.

6. While the petitioner as an applicant in response to the notification at Annexure-B is interested in seeking necessary relief for finalisation of her application, has also sought for other prayers which when granted, could affect the interest of respondent No. 4 also, on the premise that the respondent No. 4 has been illegally continuing his occupation as a Director on deputation in the respondent No. 3 - Institute etc., and has also impleaded the Secretary [Health], Government of India, Ministry of Health and Family Welfare as respondent No. 1 and the Secretary, Government of India, Department of Personnel and Training as respondent No. 2 to the writ petition.

7. Respondents being put on notice have been issued with notices and have entered appearance through counsel Respondent Nos. 1 to 3 are represented by Sri. Ashok Haranahalli, learned Counsel and respondent No. 4 is represented by Sri Arvind Kumar, learned Assistant Solicitor General.

8. Separate statement of objections have been filed, one on behalf of respondent Nos. 1 to 3 and another on behalf of respondent No. 4. A rejoinder has also been filed on behalf of the petitioner.

9. In the light of the submissions made on behalf of the respondent-Institute, there is no interim order granted in this writ petition as it had been submitted that any interim order white could hamper the processing of the applications received in response to the second notification at Annexure-A and also as the process of finalisation would take some time, there was no need to grant any interim order.

10. The writ petition was being heard from time to time and had been formally admitted by issue of rule on 7-2-2006. This court had directed the respondents to place before the court the records relating to the earlier notification as also the proceedings of the Executive Council of the respondent No. 3-Institute in its Meetings held on and after the year 2001 starting with the 46th Meeting of the Executive Council held on 12-3-2001. It appears thereafter four other Council Meetings have been held, the last of which is the 50th Meeting of the Executive Council of the respondent No. 3- Institute being held on 19-12-2005. The minutes of these Meetings are also placed before the court. The relevant extracts of the Minutes of these Meetings having relevance to the issue in this writ petition is placed before the court.

11. The main grounds urged in support of the petition are that the petitioner being a fully qualified eligible person to be appointed to the post of Director in terms of the Advertisement dated 30-3-2004 [copy at Annexure-B] and having appeared in the interview has a legitimate expectation for being selected and appointed for the post of Director; that the respondent No. 3- Institute, a public authority within the meaning of the phrase State under Article 12 of the Constitution is expected to act in a fair and non-arbitrary manner as mandated under Articles 14 and 16 of the Constitution of India; that abandoning the process of selection in terms of the public advertisement under Annexure-B and issue of another Notification as at Annexure-A even without finalising the applications received pursuant to Notification at Annexure-B is an arbitrary, capricious and malafide act; that it amounts to violation of constitutional guarantee under Article 16 of the Constitution of India; that when the selection process under the notification at Annexure-B was fully in consonance with the procedure and requirement of law, the respondents could not have jumped to the stage of inviting fresh applications for the very post even without finalising the earlier applications and even without apprising the applicants including the petitioner as to the outcome of the same and that the action under Annexure-A for issue of subsequent notification is an action not permitted in law, illegal and void; that it should be declared as inoperative; that the respondents should be directed to be bound by the earlier Notification under Annexure-B; that the subsequent notification is one issued more for favouring and promoting the interest of respondent No. 4 who has all along been accorded favourable treatment by respondent Nos. 2 and 3; that the act of re-notification is one only to promote the interest of the respondent No. 4 as under the earlier notification the respondent No. 4 was not an applicant; that it is the handiwork of the respondent No. 4 to bring about such development as respondent No. 4 himself is interested in perpetuating his position as a Director of the respondent No. 3 -Institute; that the entire subsequent action issuing notification under Annexure-A and also abandoning the processing of the applications pursuant to notification under Annexure-B is totally a malafide and biased action, violative of Article 14 and 16 of the Constitution; that the act of upgrading the post of Director as is indicated in the subsequent notification is also an act brought about to further the interest of the respondent No. 4 and to protect his interest and at any rate such upgradation cannot be a good ground for issuing a fresh notification as at Annexure-A which is liable to be quashed; that the appointment of the respondent No. 4 to the post of Director initially and continuance are both in violation of the directives issued by the Department of Health & Family Welfare, Government of India as it is a matter of transfer on deputation where the appointment was initially termed as stop gap interim arrangement and the respondent No. 4 has been continuing for more than five years though not permitted in law; that such continuation is also violative of Articles 14 and 16 of the Constitution of India and therefore relief as sought for in the writ petition should be granted.

12. Respondents have resisted the writ petition and have sought for dismissal of the writ petition.

13. In the statement of objections fifed on behalf of respondent Nos. 1 to 3, it is contended that the very writ petition is not tenable; that the respondent No. 3 - Institute is not State within the meaning of Article 12 of the Constitution of India; that the Institute is an autonomous body exclusively meant for research and service in the field of speech and hearing; that this question is no more res integra and has been answered by this Court holding that the respondent No. 3 -Institute is not a State within the meaning of Article 12 of the Constitution of India in terms of the division Bench decision of this Court in the case of Ravi shankar Shukla v. Union Of India and Ors. reported in 2002 (2) KLJ 339; that this legal position is amplified by the Supreme Court in the case of Zee Telefilms Ltd. and Ors. v. Union of India and Ors. reported in : AIR2005SC2677 and therefore the writ petition has to be dismissed in limine without examining any other aspects.

14. It is urged that as the incumbent Director one Dr. [Ms.] Nikam was due for retirement on 29-2-2000 and a request for extension being not acceded to by the Ministry, the respondent No. 4 - an Additional Professor and Head of the Department, Department of Speech Pathology and Audiology, at National Institute of Mental Health and Neuro Sciences was appointed as a Director on deputation; that the post had not been advertised for being filled up at that time; that the deputation of the respondent No. 4 to the respondent No. 3 - Institute was with the approval of the Ministry of State for Health and Family Welfare, Government of India; that the deputation of respondent No. 4 had been extended from time to time and while in the statement of objections filed on 7-10-2005 it had been indicated that the deputation had been extended upto 18-1-2006, learned Counsel for respondent No. 4 submits that it has now been extended upto 19-4-2006.

15. It is averred that the appointment by deputation was due to paucity of time to fill up the post on a regular basis; that as at the time of respondent No. 4 being deputed to the post he was drawing salary and total emoluments much above the pay provided to the post of the Director, proved monetary loss to the pay of respondent No. 4, was protected in terms of the decision taken by the Executive Committee meeting held on 12-3-2001; that certain amendments were carried out to the recruitment rules for the post of Director in the very meeting and it was resolved to upgrade the post and revise the pay scale for the post to the level of Rs. 18,400 - Rs. 22,400/- from the earlier scale of Rs. 14,300-18,300/-; that though the Executive Council had resolved to upgrade the post and revise the pay scale, for want of approval by the Central Government it could not be given effect to and in the meanwhile it was resolved to advertise for the post being filled up indicating the pay scale as had been prevailed earlier before the resolution of the Executive Council in its 46th Meeting.

16. It is averred that the proposal for according upgradation to the post and consequential revision of pay scales was pending decision with the Central Government for quite some time.

17. It is averred in the statement of objections filed on behalf of the respondents 1 to 3 that the third respondent institute had received eight applications in response to the paper publication dated 30-3-2004, amongst them, six applicants appeared for the interview held on 22-11-2004, who were interviewed by the selection committee under the chairmanship of its Secretary; that the selection being complete only on the approval of the competent authority and thereafter appointment order should be issued, according to the recommendation of the selection committee and this stage has not been reached.

18. It is further averred that in the light of the decision of the Government to launch what is known as National Deafness Control Programme for prevention and early identification of the speech and hearing disabled children and for providing facilities to enable them to join the mainstream and for such purposes, the government wanted to appoint a nodal agency for the programme and as it had been found that the grading of the institution was not commensurate to meet the challenges and the requirements of the programme and the need of a person like the Director who was to head such an institution commensurate with the status and not only to raise the level of the institute to be on par with any comparable institution but also to ensure that the person who is the director is a person having the necessary qualification and holding commensurate post, it was thought fit by the institute to pursue the matter of upgradation of the post of Director with the central government, which had been sanctioned, as decided by the Executive Council and to process the matter with the central government by putting in additional efforts.

19. It is averred that in the light of such developments, it was decided that the proceedings of the selection committee be kept in abeyance tin the decision of the Union Finance Ministry was received on the aspect of upgradation of the scale of the pay of the director. It was in such circumstance, it is averred that the tenure of the present deputation director was extended tin 18-1-2006 or till a new director is appointed, whichever is earlier. It is also averred that ultimately the Union Finance Ministry approved the proposal for upgradation of the pay scale from Rs. 14,300-18,300/- to 18,400/- to 22,400/- in terms of the communication dated 1-6-2005 [copy at Annexure-R-1 to the statement of objections filed on behalf of the fourth respondent], which reads thus:

I am directed to refer to this Ministrys letter No. V.19013/1/2001-PH dated 19th May, 2005, conveying the approval of the competent authority for the upgradation of the pay scale of the post of Director, AIISH from Rs. 14,300-18,300/- to 18,400/- to 22,400/- and to request you to re-advertise the vacancy in prominent newspapers giving 60 days time for receipt of applications.

All the applications received in response to the advertisement may please be forwarded to this Ministry for selection of a suitable candidate.

[emphasis supplied]

It is also averred in the statement of objections filed on behalf of the respondents 1 to 3 that, it being the prerogative of the Government as to who should be appointed to a particular post and what should be the qualifications and emoluments for the post, the decision for upgradation and the consequences thereof cannot be questioned by any person, including the petitioner, as the petitioner had not been offered any appointment nor had she been appointed to any post and the post having been upgraded subsequently, the petitioner cannot lay claim to any post notified earlier or now notified as a matter of right.

20. It is averred that reliance placed on the orders of the Department of Personnel and Training, Government of India, governing deputation of central government employees and the conditions therein, are not applicable to the case of the fourth respondent, as the fourth respondent was a person who was serving in one autonomous body viz., NIMHANS and has been sent on deputation to another autonomous body - the third respondent institution - and therefore the time stipulation of the maximum period of deputation and further extension etc., are not applicable and reference to such terms and conditions are of no consequence in the matter of deciding the validity of the order of deputation or the orders extending the term of the fourth respondent from time to time.

21. It is averred that the fourth respondent being an applicant to the post as notified in terms of Annexure-A, cannot be a matter of concern of any consequence to the petitioner, as the fourth respondent is a person eligible to apply for the post and having applied, the petitioner cannot have any grievance in this context; that the fourth respondent being continued to function as a director, who is on deputation in the third respondent organization, cannot also be termed as a favourable treatment shown to the fourth respondent; that it is not open to the petitioner to cast aspersions either on the respondents or anyone else, which are all without any factual or legal basis; that the fourth respondent was duly appointed by the Government of India in the public interest and therefore seeking for sending him away from the post or repatriating him to the parent department viz., NIMHANS was not justifiable; that the petitioner has no right to pray for such a relief, as the appointment of fourth respondent has in no way affected her interest and the prayer for finalization of selection in terms of the earlier notification cannot be granted, as the post having been upgraded, the earlier selection process has become void and fresh selection process is required to be started and completed in terms of the subsequent notification, and therefore the prayer for directions to finalize the selection process on the baste of the applications received in response to the earlier notification cannot be granted and the writ petition should be dismissed.

22. It is further averred that while it is the prerogative of the Government to appoint or not to appoint any person having regard to the public interest, notwithstanding the persons if any having the eligibility criteria, it was open to the petitioner to apply for the post as and when advertised afresh and it is when such opportunity was available, there is no necessity to examine the other averments in the context of earlier paper publication and have prayed for dismissal of the writ petition.

23. Separate statement of objections has been filed on behalf of the fourth respondent also, It is averred by the fourth respondent that he was working as Additional Professor of Speech Pathology and Audiology and was drawing salary in the pay scale of Rs. 16,400-20,900/- in NIMHANS during the year 2000; that he was deputed to the third respondent institute as director having a lower pay scale of Rs. 14,300-18,900/-; that the fourth respondent was continued as incumbent director on deputation tin a regular director was appointed; that as a regular director has not been appointed, the tenure of the fourth respondent has been extended from time to time; that both the initial deputation and the periodic extensions are in accordance with law; that the pay of the fourth respondent was protected on deputation and such protection was approved by the executive council and the post itself was upgraded, as indicated earlier, but as the upgradation and amendment to the Recruitment Rules has been approved subsequently by the central government, the post has been notified for being filled up under the Recruitment Rules, which had the approval of the first respondent-secretary. It is also averred by the fourth respondent that upgradation being in the context of the need for the director of third respondent institute to bear higher responsibility as the institute was acting as a nodal agency for the implementation of central government programmes, the matter was vigourously pursued with the Ministry of Finance and the approval was finally given during May 2005, and as a consequence the post has been renotified with new pay scale and the fourth respondent having been continued in the meanwhile.

24. It is averred by the fourth respondent that no appointment order having been issued in favour of any person who had applied to the post of Director earlier, there is no question of petitioner being appointed as Director. It is averred that the fourth respondent has the requisite qualifications for the post as advertised in terms of notification at Annexure-A. Further averment is that the petitioner has no legal right to question the notification issued for filling up the post and also the upgrading of the post and that the decision being pursuant to the directions of the Ministry of Health and Family Welfare, Government of India in terms of the letter dated 1-6-2005 [copy at Atmexure-R1], the process pursuant to the earlier advertisement and the applications received need not have to be continued and the earlier applications are necessarily required to be abandoned. The other averments made against the fourth respondent are all denied. It is urged that the office memorandum dated 5-1-1994 [copy at Annexure-D to the writ petition], governing the service conditions and the deputation is not applicable to the fourth respondent, as it is applicable only to central government employees who are on deputation and not to persons like the fourth respondent.

25. The other averments on behalf of fourth respondent are in line with the statement of objections filed on behalf of the respondents 1 to 3, which need not be repeated. It is specifically pleaded by the fourth respondent that he is in no way responsible either for the initial order of deputation or for periodic extensions nor can he be held responsible or blamed for not only abandoning the earlier selection process but also initiation of fresh selection process in terms of the subsequent notification for filling up the post of Director as upgraded. It is averred that considerable hardship would be caused to the institute, as the interest of the institute will suffer if the writ petition is allowed and the prayer is granted in favour of the petitioner. It is also averred that allowing the writ petition would amount to causing injustice and disservice to the disabled persons for whose benefit the third respondent institute exists, and has prayed for dismissal of the writ petition.

26. Petitioner on her part by filing rejoinder, has asserted that the third respondent institute is State within the meaning of Article 12 of the Constitution of India; that the executive control is with the Government of India, Ministry of Health and Family Welfare; that it is virtually the central government which has to take decisions in the affairs of the institute; that irrespective of the contention of the third respondent that it is not State, the action which is one attributable to the central government is necessarily amenable to writ jurisdiction; that the central government has also financial control over the institute; that the institute came into existence as part of the Ministry of Health and Family Welfare, Government of India, and the Director General of Health Services was its head of department for the purposes of fundamental and supplementary rules and other service conditions as also delegation of financial power as contained in Government of India communication dated 29-5-1965, addressed to the Director of Health Services, New Delhi [copy at Annexure-J to the writ petition]; that the institute though has to function as an autonomous body, the institute set up at Mysore was a subordinate of the Health and Family Welfare Services, New Delhi and was for the purpose of facilitating training of medical and para-medical workers in the field of logopedics [speech therapy] and also for treatment of handicapped persons suffering from speech and hearing disorders; that this communication also indicates that the expenditure for creating posts etc., was to he charged as part of the expenditure of the Central Government, Ministry of Medical and Public Health, Ministry of Health and Family Welfare, and an institute of such nature cannot claim as not a State within the meaning of Article 12 of the Constitution.

27. It is further averred that even in terms of the government communication dated 17-2-1995 [copy at Annexure-H], from the Ministry of Health and Family Welfare, addressed to the Secretary to Government, Government of Karnataka, it had been mentioned that the institute is an autonomous body wholly financed by the Ministry. It is also further averred that the institute itself had held out that it is wholly financed by the government of India and functioning under the directions of the HUD council, Ministry of Health and Family Welfare, etc., as indicated in the prospectus issued by the very institute for the purpose of informing the intended applicants to apply for the training programme in the institute and it is also mentioned in such prospectus that the institute is affiliated to the University of Mysore for the purpose of awarding degrees, and the extract from the prospectus is produced at Annexure-N to the writ petition and if such was the understanding and the declaration by the very institute itself, it is no more open to the institute to contend that it is not a State within the meaning of Article 12 of the Constitution; that even in terms of the memorandum of association, rules and regulations and the bye-laws of the institute, service conditions of the employees, which are all on par with the central government employees; that the Central Civil Services (Conduct) Rules 1964 has been made applicable to the employees of the institute, in terms of the Article 24 of the Memorandum of Association; that it is not open to the institute to contend that the deputation rules of the Central Government does not apply to the employees of the institute, as in terms of Article 26 of the Memorandum of Association, the other service conditions of the employees of the institute which are not expressly provided for, are supplemented by adoption of corresponding conditions of service, pay, allowance etc., including foreign service terms etc., governing the employees of the central government and it is made clear that they are applicable mutatis mutandis to employees of the institute and therefore it is not open to the respondents to urge or contend that foreign service/deputation Rules do not apply or that they do not govern deputation of the fourth respondent.

28. It is also sought to be urged that the fourth respondent ever since his date of appointment had made all attempts to stall the process of the post of director being advertised for being filling; that he himself was not qualified when he joined as director on deputation; that even before the post was renotified, the fourth respondent was incidentally ensuring that the result of the interview conducted for the applicants who had applied for the post in response to the earlier notification was not made known to the applicants; that it was only the fourth respondent who had acted to ensure that the earlier notification was abandoned; that the fourth respondent being a member of the executive committee of the third respondent institute has misused that position for furthering his own interest; that the fourth respondent was not only privy to the proceedings of the selection committee but also has misused his position by stalling the same and has ensured that the earlier selection process was abandoned; that the advertisement of the post at Annexure-B leading to the present publication, are an vitiated and are due to such interested and biased conduct on the part of the fourth respondent; that the very manner in which things are taking place indicates the self-serving partisan role played by the fourth respondent and it is not in the public interest either to retain the fourth respondent in the post or to prevent the selection in the proper manner. It is therefore that the petitioner has urged for issue of writ as prayed for in the writ petition.

29. In the light of such pleadings, the learned Counsel for the parties have made elaborate submissions both on the aspect of preliminary objections raised by the respondents on the maintainability of the petition on the premise that the third respondent institute is not State within the meaning of Article 12 of the Constitution, as also on the merits of the case.

30. In the light of the preliminary objection raised and if the preliminary objection sustains, there being no need or occasion for examining the matter on merits, the preliminary objection is considered first and the learned Counsel have also requested for such a course of action.

31. While Sri. Ravivarma Kumar, learned Senior Counsel appearing for the petitioner has placed reliance on the following decisions in support of his submissions to impugn not only the action but also the continuation of respondent No. 4 as a Director in the respondent No. 3 - Institute,

[a]Ashok Kumar Sharma v. Chander Shekhar and Anr. reported in : (1997)ILLJ1160SC .

[b] P. Mahendran and Ors. v. State of Karnataka and Ors. reported in : AIR1990SC405 .

[c] N.T. Bevin Katti v. Karnataka Public Service Commission and Ors. reported in : (1990)IILLJ456SC .

[d] Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. reported in : [2002]3SCR100

[e] Chander Mohan Khanna v. Ncert and Ors. reported in : (1992)ILLJ331SC .

[f] P.K Ramachandra Iyer and Ors. v. UNION OF India and Ors. reported in : (1984)ILLJ314SC

[g] Unni Krishnan J.P. and Ors. v. State of A.P. and Ors. reported in : [1993]1SCR594

[h] T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. reported in : AIR2003SC355

[i] Munireddy M. v. State of Karnataka and Ors. reported in [1981] 2 KLJ 417

[j] A.K. Kraipak and Ors. v. Union of India and Ors. reported in : [1970]1SCR457

Sri. Ashok Haranahalli, learned Counsel for respondent Nos. 1 to 3 has placed reliance on the following decisions:

[a] Ravi Shankar Shukla v. Union of India and Ors. reported in 2002 (2) KLJ 329;

[b] Zee Telefilms Ltd. and Ors. v. Union of India and Ors. reported in : AIR2005SC2677

[c] Ajay Hasia Etc. v. Khalid Mujib Sehravardi and Ors. reported in : (1981)ILLJ103SC

[d] Dr. Vijaya Lakshmi Sadho v. Jagdish reported in : [2001]1SCR95

[e] State of Mysore v. R.N. Rajanna reported in : AIR1973SC364

[f] I.J. Divakar and Ors. v. Government of A.P. and Anr. reported in : (1983)ILLJ217SC

32. Submission of Sri Ravivarma Kumar, learned Senior Counsel appearing for the petitioner is that the preliminary objection raised on behalf of the respondents to contend that the third respondent is not State within the meaning of Article 12 of the Constitution, though by placing reliance on the decision of the Division Bench of this Court in the case of Ravi Shankar Shukla [supra] it cannot come in the way of the petition being entertained, in view of the present state of law and also for the reason that the decision relied upon cannot also be treated as a precedent which is required to be followed and applied in subsequent cases, for the reason that this decision itself was based on a very limited examination and not one rendered on a real examination of the issue, but more because of certain inability on the part of the earlier petitioner and his counsel. It is urged that irrespective of the decision of the Division Bench of this Court, the law as declared by the Supreme Court on applying the tests as laid down for the purpose of determining as to whether an institution is State within the meaning of Article 12 of the Constitution or not, particularly in the wake of the development of law and based on the law itself as declared by the Supreme Court subsequent to the decision of the Division Bench of this Court and as if has been emphatically and authoritatively declared by the Supreme Court in the subsequent decisions, it inevitably lead to the conclusion that the third respondent institute is State within the meaning of this expression under Article 12 of the Constitution of India.

33. It is here that the learned Counsel for the petitioner has placed reliance on the decisions of the Supreme Court in the following cases:

1 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. : [2002]3SCR100 and.

2. Zee Telefilms Ltd. and Ors. v. Union of India and Ors. : AIR2005SC2677

34. Though the learned Counsel for the petitioner has placed reliance on a good number of other authorities and the decisions of the Supreme Court to make good his submission that the third respondent is State within the meaning of Article 12 of the Constitution, while a mere reference is made in the course of this order to those decisions, they are not considered in detail, as the law laid down by the Supreme Court in any case is binding on all courts in view of Article 141 of the Constitution of India and is required to be followed in all subsequent cases and if the law is as declared in a latter decision of the Supreme Court and on the very question involved in any earlier decision and if the subsequent declaration of law is emphatic and by a Constitutional or a larger Bench of the Supreme Court, then irrespective of the question as to whether the earlier decisions of the Supreme Court have been expressly overruled or not in the latter decision, it is the declaration of law in the latter decision which holds the field as a law declared by the Apex Court and which has to be applied. For a decision in a case like the present one which is being now considered as in the present situation, the decision to be referred to and applied is the law as it stands as of now and as declared by the Supreme Court.

35. The question that has been examined in Pradeep Kumar Biswas [supra] a Constitutional Bench of larger composition of the Supreme Court has interpreted Article 12 of the Constitution and the concept of State for the purpose of Article 12 and the principles and test laid down therein has to be applied for answering the question as to whether the institute is State within the meaning of Article 12 of the Constitution or otherwise. This decision has been expressly noticed, followed and not only reiterated but it is also recapitulated in the subsequent decision of the Supreme Court in the case of Zee Telefilms Ltd. [supra]. The test as indicated in para-21 and 22 of the said decision are as under:

21. Thereafter, the larger Bench of this Court in Pradeep Kumar Biswas after dicussing the various case-law laid down the fallowing parameters for gauging whether a particular body could be termed as State for the purpose of Article 12:

40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be - financially, functionally and administratively dominated by or under the control of the government Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within. Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State. 22. Above is the ratio decidendi laid down by a seven-Judge Bench of this Court, which is binding on this Bench. The facts of the case in hand will have to be tested on the touchstone of the parameters laid down in Pradeep Kumar Biswa case. Before doing so, it would be worthwhile once again to recapitulate what are the guidelines laid down in Pradeep Kumar Biswas case for a body to be a State under Article 12. They are:

(1) Principles laid down in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them, it must ex hypothesi be considered to be a state within the meaning of Article 12.

(2) The question in each case will have to be considered on the basis of facts available as to whether in the light of the cumulative facts as established, the body is financially, functionally, administratively dominated, by or under the control of the government;

(3) Such control must be particular to the body in question and must be pervasive.

(4) Mere regulatory control whether under statute or otherwise would not serve to make a body a State.

36. If the law is as declared in the decision, of the Pradeep Kumar Biswas [supra] and as reiterated and followed in the decision of Zee Telefilms Ltd. [supra], that law or ratio has to be necessarily applied by this Court in all subsequent decisions.

37. It is here that Sri Ashok Haranahalli, learned Counsel appearing for the respondents 1 to 3 has raised an objection that in the light of the decision of the Division Bench of this Court indicating that the very third respondent institute being not State within the meaning of Article 12 of the Constitution, in terms of the decision in RAVI Shankar Shukla [supra] and this Court for the purpose of such decision having followed the law laid down by the Supreme Court in the case of Chander Mohan Khanna v. NCERT : (1992)ILLJ331SC , for the purpose of holding that the third respondent is not State within the meaning of Article 12 of the Constitution, the decision of the Supreme Court in the case of Chander Mohan Khanna having not been expressly overruled so far, it is but inevitable that this decision of the Division Bench should be followed by a Single Bench, both as a matter of judicial propriety and also on applying the law of precedent.

38. It is here learned Counsel for the respondents 1 to 3 submits that even assuming for arguments sake that the status of the third respondent institute could be determined to be State within the meaning of this expression for the purpose of Part-III of the Constitution by applying the test as laid down in the case of Pradeep Kumar Biswas followed in the case of Zee Telefilms Ltd. it is still not open for a Single Bench of this Court to characterize the decision of the Division Bench either as incorrect or as not a proper law and therefore to proceed to hold that the third respondent State within the meaning of Article 12 of the Constitution.

39. What is submitted on behalf of the respondents 1 to 3 is that assuming that the correct law had not been laid down by this Court in the case of Ravi Shankar Shukla, it is nevertheless not open to a Single Judge of this Court to say that the decision is either incorrect or not proper and if at all the decision requires reconsideration, as a matter of judicial propriety and judicial decorum, the question will have to be referred to a larger Bench for resolving this conflict and a Single Judge of this Court cannot proceed on the premise that the third respondent institute is nevertheless State by applying the present state of law, on the premise that such is the state of law as declared by the Supreme Court

40. There cannot be any two opinions that the third respondent institute answers the test of it being State within the meaning of Article 12 of the Constitution, if the principle and ratio as laid down by the Supreme Court is to be applied to the fact situation as it emerges in the present case. Even on the strength of the admission of the very third respondent and on the basis of the correspondence and declaration of the central government, the third respondent is undoubtedly to be treated as State as it is revealed that the central government is totally financing the running of the institute, the central government controls and regulates the finance of the institute; that the managerial control of the central government is an pervasive and total and even the very creation of the institute was as part of the government of India, Ministry of Health under the very Ministry, the prevailing service conditions and rules etc., of the employees of the institute are all governed only by the service rules of the employees of the government of India; the control has continued even to this day.

41. However, the submission of Sri Ashok Haranahalli, learned Counsel for the respondents 1 to 3 is that in the light of the decision of the Division Bench of this Court in the case of Ravi Shankar Shukla [supra], holding that the third respondent institute is not State within the meaning of Article 12 of the Constitution of India in that decision, which becomes a precedent, it has to be necessarily followed by this Court in all subsequent cases and it is not open to a Single Judge of this Court to take a contrary view even on the basis of the law as declared by the Supreme Court in subsequent cases.

42. It is in the light of this submission, one has to examine the decision of the Division Bench of this Court in the case of Ravi Shankar Shukla and decide on the acceptability of this submission on the part of the learned Counsel for the respondents 1 to 3.

43. The judgment of the Division Bench of this Court in the case of Ravi Shankar Shukla [supra] on this aspect as contained in para-4 and 5, reads as under:

4. Providing or rendering public service as per Society Bye-laws atone so also mere financial contribution by the State is not conclusive to hold a society as either agency or instrumentality of the government as to be amenable to Article 12 of the Constitution. In other words, every autonomous body which has some access with the government cannot ipso facto comer within the meaning of Article 12, unless satisfies the requirement of Article 12 of the Constitution, However, each case depends upon the facts and circumstances its own. Now the question is whether the writ is maintainable or not. The learned Counsel for the appellant nets placed Memorandum of Association and relied that this institute is affiliated to Mysore University and as per Clause (e), they can invite representatives of governments, Universities and other Organizations of India and of foreign counties to deliver lectures on subjects in which the society is interested. There is an Executive Council having fixed terms and some of the persons are appointed by the government and the rules are to be approved by central government. Under the circumstances and on that basis learned Counsel argued that it has the full control and amenable to writ jurisdiction.

5. The counsel has not been able to show that this autonomous body is getting entire financial assistance and overall control. Merely because the institution has got membership and other provisions it will not ipso facto mean that this institution is a State and comes within the meaning of Article 12 of the Constitution. We are not satisfied with the requirements and agree with the view taken in the earlier case of this institution which was dismissed as not maintainable relying on the decision of the Supreme Court in Chander Mohan Khannas case, supra. On overall consideration, we find no error or illegality in the order of the learned Single Judge. Once the writ is not maintainable, it is not necessary to go into the merits of the case at this stage. The writ appeal is also dismissed as not maintainable.

44. While it is generally observed in para-4 that the very society providing or rendering public service and because of mere financial contribution by the State cannot be conclusive to hold that the society is an instrumentality of government, bringing it within the ambit of Article 12, para-5 contains the reasons as to why the Division Bench has held that the Institute is not State. It is specifically observed that the counsel has not been able to show that this autonomous body is getting entire financial assistance and overall control and merely because the institution has got membership and other provisions, it will not ipso facto mean that it is a state and comes within the meaning of Article 12.

45. It is in this context, Sri Ravivarma Kumar, learned Senior Counsel appearing for the petitioner has vehemently urged that the respondent-institute has virtually suppressed the true picture and position before this Court in the earlier case; that though it was the admitted position that total financial control and fund for running the institute is from the central government; that as the learned Counsel for the petitioner/appellant in the said case had failed to put forth the true facts and materials before this Court, it has been held that the institute is not a State within the meaning of Article 12; that the annexure produced along with the rejoinder fifed by the petitioner in this case clearly indicates that the third respondent is a State within the meaning of Article 12 of the Constitution; that even it is an admitted fact that the central government has total financial control and the funds flow from the central government for running the institute; that it was because of non-placing of proper materials and such factual position by the counsel who had appeared in the earlier case, the Division Bench has held that the third respondent is not a State and therefore the decision cannot he taken as an authority.

46. Sri Ashok Haranahalli, learned Counsel for the respondents 1 to 3 while does not dispute the factual position as is indicated in the rejoinder, urges that there was no suppression of facts on the part of the institute in the said decision; that the court proceeded to examine the question on the limited presentation on the part of the petitioner/appellant and as it found that the material was not sufficient, the Division Bench declared that the respondent-institute was not State; that the deficiency on the part of the petitioner/ appellant/his counsel cannot be converted to place the blame on the respondents.

47. Be that as it may, what is clear on an examination of the decision of the Division Bench is that the decision is virtually based on the inability of the counsel to make good the case that the respondent-institute was a State within the meaning of Article 12 of the Constitution and particularly in the light of the material as had been placed by the petitioner/appellant in that case. It is more akin to a decision based on concession than a decision on real merits examining all aspects of the matter. Therefore, 1 take the view that the decision of the Division Bench in the case of Ravi Shankar Shukla is not a precedent which is binding and required to be followed in all subsequent cases.

48. I am of the clear opinion that the decision of this Court in the case of Ravi Shankar Shuka does not even constitute a precedent, which is required to be followed as law laid down by this Court in subsequent decisions, as it is more based on a failure on the part of a particular person than one laying down a principle of law or one where a finding is rendered on an examination of all relevant issues. While it may be true that the decision once rendered between the parties on applying the principles of res judicata may bind the parties claiming under the very parties, it cannot bind persons not claiming under the same title. Third respondent being declared as State or otherwise, cannot be dependent on the ability or otherwise of persons to litigate against the third respondent. It cannot be that in one case a person is able to show and in another case may not be able to show a particular aspect of the matter. To follow a decision as a precedent, it should be one containing a ratio decidendi, a principle laid down on an examination of all aspects of the matter and not based on the ability or otherwise of a particular petitioner in a particular case. It is for this reason, I am of the opinion that the judgment of the Division Bench is not one which can be termed to be a binding precedent required to be followed by this Court in subsequent cases.

49. But what is more important is to find out as to what is the effect of a decision of this Court, whether of a Single Judge or of a Division Bench or even of a larger Bench, when once on the very question the Supreme Court declares the law. It is that law as declared by the Supreme Court subsequently which prevails and which is required to be applied and followed by an courts in the country and if the law has been laid down or declared emphatically in a decision of the Supreme Court, which is subsequent in point of time, then the decision of this Court in Ravi Shankar Shukla relied on by the respondents 1 to 3 is of no consequence, but what is required to be followed and applied is the law as is declared by the Supreme Court, which is the law binding on all courts under Article 141 of the Constitution.

50. This apart, Sri Ravivarma Kumar, learned Senior Counsel appearing for the petitioner, has urged some more grounds to make good the contention that even independent of this examination, the third respondent institute answers the test of State within the meaning of Article 12 of the Constitution. It is urged that it is also an educational institution which is affiliated to the University of Mysore and it is the degrees of the University that is conferred on students who undergo study in the institute and if that is the situation, the proposition that the third respondent institute is a State within the meaning of Article 12 of the Constitution is inescapable even in terms of the decision of the Supreme Court in the case of Unnikrishnan v. State of Andhra Pradesh : [1993]1SCR594 - PARA-204.

51. It is the submission of the learned Counsel for the petitioner that even applying the test and law laid down by the Supreme Court in the case of Unnikrishnan and as this aspect of the matter was not considered by the Division Bench of this Court in the case of Ravi Shankar Shukla [supra], the decision rendered by the Division bench should be taken to be per incurium of the decision of the Supreme Court in the case of Unnikrishnan.

52. Learned Counsel for the petitioner also submits that this part of the law laid down and declared by the Supreme Court that an educational institution affiliated to a University is also automatically a State within the meaning of Article 12 of the Constitution, having been reiterated by the Supreme Court in the case of T.M.A. Pai Foundation v. State of Karnataka : AIR2003SC355 , a decision of a larger Bench, the third respondent-institute is to be treated only as State and not anything else.

53. Assuming for arguments sake that the decision of this Court in the case of Ravi Shankar Shukla contains a ratio or a principle of law and it constitutes a precedent, I am of the view that it is not a good law in the wake of law as declared by the Supreme Court not only in Unnikrishnans case [supra] but also on the principles as enunciated in the case of Pradeep Kumar Biswas and reiterated in the case of Zee Telefilms. It is for this reason, I reject the preliminary objections raised on behalf of the respondents, as I am of the opinion that by applying the ratio and the law laid down by the Supreme Court in Pradeep Kumar Biswas and reiterated in Zee Telefilms Ltd. [supra], the third respondent institute, undoubtedly and without any ambiguity or doubt, answers the test of it being a State within the meaning of Article 12 of the Constitution.

54. Not only on the overwhelming evidence and material on record but also by applying the legal position in terms of the law as declared by the Supreme Court, it very conclusively leads to an unequivocal answer to hold that the third respondent institute is state within the meaning of Article 12 of the Constitution of India and it is for this reason, the preliminary objection is rejected and I proceed to examine the merits of the matter on the premise that the third respondent is State and its action can be examined by this Court in the exercise of writ jurisdiction.

55. Sri Ravivarma Kumar, learned Senior Counsel appearing for the petitioner has urged yet another ground to quality the case of the petitioner at the hands of this Court for judicial review of an administrative action in the exercise of writ jurisdiction.

56. Independent of the question of third respondent being a State within the meaning of Article 12 of the Constitution, and termed as autonomous body, learned Counsel has submitted that the action that is called in question in the present writ petition is an action of the central government and the cause of action arises for scrutiny by this Court for this reason also. Learned Counsel submits that the action and development challenged in the petition are all consequent to the action on the part of the central government, which are required to be examined by this Court for the purpose of answering the question that arises for granting relief and if such is the situation, the question as to whether the third respondent is State within the meaning of Article 12 of the Constitution or otherwise recedes to the background.

57. Submission is that in the matter of selection of persons to the post of Director of third respondent institute, the decision making has been that of the central government at every level and if such action on the part of the central government is one which does not meet the requirement of law or is in any way in contravention of the constitutional mandate, this Court not only can examine the matter in the exercise of writ jurisdiction but also is enabled to issue appropriate writ, as a consequence or as a result of such examination, if the issue of such writ is warranted.

58. For the purpose of examining various grounds urged in the writ petition and particularly the various contentions put forth on behalf of the respondents, the respondents had been directed and have placed before the court the records of Government of India, Ministry of Health and Family Welfare, Department of Health, in File No V-19011/2/2004-PH, relating to selection to the post of Director of All India Institute of Speech and Hearing [third respondent] and also the File No. V-19013/1/2004-PH, relating to upgradation/revision of pay scale of Director of third respondent institute, As per the directions of this Court, the institute has also made available the file relating to minutes of the meetings of executive council of the institute starting from 44th meeting held on 27-11-1998, as also the minutes of 45th meeting held on 26-2-2000, 46th meeting held on 12-3-2001, 47th meeting held on 1-4-2002, 48th meeting held on 5-7-2003, 49th meeting held on 21-3-2005 and 50th meeting held on 19-12-2005.

59. Sri Haranahalli, learned Senior Counsel appearing for the respondents 1 to 3 had occasion to take me through the relevant notings in the fife relating to selection process pursuant to the advertisement dated 30-3-2004 and leading to the impasse of abandoning the selection in terms of note dated 13-1-2005, when it was decided by the Ministry of Health and Family Welfare that the post is required to be re-advertised and fresh selection made, as it had been decided to take up the issue of upgradation of the post of director with the Ministry of Finance once again and in anticipation of a positive response, the post is required to be re-advertised on upgradation and in such circumstance, the present incumbent be allowed to continue to function as director. The relevant note and the decision itself is contained at pages 16 and 17 of the file, which reads as under:

File deals with the appointment of Director, All India Institute of Speech and Hearing, Mysore.

Since the present incumbent Dr. M. Jayaram has completed his 4th year of deputation, the vacancy was advertised and invited applications from eligible officers. Accordingly, we had received 8 applications. All the eight candidates were called for the interview on 23-11-2004 before the Selection Committee headed by the Secretary (H), out of the six candidates attended the interview. Selection Committee recommended Dr. Vijaya Lakshmi Basavaraju, DD(Tech) All Yavar Jung Institute for the Hearing Handicapped, Mumbai suitable for appointment as Director, AIISH. Minutes of the Selection Committee meeting may please be seen at Flag-A.

Copy of RRs is placed below in the folder attached with the file, according to the bylaws of the institute, the director shall be appointed by the Executive council on such terms and for such period as may be decided by the Executive Council (copy of relevant page of byelaws is placed at F/2)

Since the date of next EC meeting is not yet decided, the proposal to appoint Dr. Vijaya Lakshmi Basavaraju as Director, AIISH may be submitted to HFM for approval in the capacity of the Chairman of EC. The case will be placed before the EC of the institute in the ensuing meeting for approval,. In this context it is worth mentioning that the period of deputation of Dr. Jayaram present director of the institute, has been extended for a period of three months from 19-19-2004.

Submitted.

This was discussed with HFM by Secy. (H&FW;) where undersigned was also present.

It was clarified that the issue of upgradation of the post of Director, AIISH, Mysore from the scale of Rs. 14300-18300 to the scale of Rs. 18400-22400 is being taken up with the Ministry of Finance once again. Considering the scope of work and out efforts in starting a national programme for control of deafness. Once pay scale is revised, the post is required to be re-advertised and fresh selection made. In view of the foregoing till a final decision is taken on the reference being made to the Ministry of Finance, decision on recommendation of selection committee may be deferred and existing incumbent be allowed to continue as Director, AIISH, Mysore.

60. A perusal of this file, which begins with the first note relating to the filling up of the post pursuant to the advertisement dated 30-3-2004 and ended with the note dated 16-7-2004, makes an interesting revelation. The notes indicate that the entire matter is dealt with by the Ministry of Health and Family Welfare, as though the central government is dealing with a department of the government and not in respect of a matter relating to an autonomous body i.e. the third respondent institute of which the Minister of Health and Family Welfare acts as Chairperson of the executive council ex officio! All decisions are taken, though they relate to the management of the institute, only by the Secretary of the Ministry of Health and Family Welfare, either at the secretariat level or at the level of the minister.

61. A perusal of the file relating to the upgradation of the post, which again is dealt with as though it is a post in any other department of the government and the correspondence with the Ministry of Finance, the note for obtaining the concurrence of the Ministry of Finance while is noteworthy indicative of the total financial control and management exercised by the government on the institute, it also reveals that the matter is being treated or dealt with more as a matter of a branch of the government itself and not as that of an autonomous body. The final decision making power in so far as the third respondent-institution is concerned is conferred on the executive council in terms of the bye-law No 5 of the Memorandum of Association, Rules and Regulations and Bye-laws of the institute, but it is practiced only in breach as the department of Health, Government of India, has taken all decisions reducing the executive council of the institute a mute spectator just to nod the decisions already taken by the government.

62. A perusal of the file of the Ministry, both relating to the appointment of the director as also the upgradation of the post, while indicates that the entire matter is dealt with at the level of Ministry, perusal of the minutes of the executive council starting from, the 44th meeting upto the 50th meeting, indicate that the executive council hardly had an occasion to take decisions relating to the selection to the post of director or any decision for obtaining the earlier notification and the application that had been processed and also to go in for fresh advertisement The only matter which had received attention and approval of the executive council was the subject relating to the amendment to the Cadre and Recruitment Rules for the post of director, which was item No. 8. Item No. 9 relates to the upgradation and revision of pay scale of director, item No. 10 is regarding fixation of pay in respect of the director. The agenda before the executive council in terms of agenda item No. 10 of the 46th meeting of the executive council held on 12th March, 2001, reads as under:

Agenda item 10: Fixation of pay in respect of Dr. M. Jayaram, Director, AIISH.

The EC approved that the drop in total emoluments of Dr. M. Jayaram, Director, AIISH on his appointment as such from NIMHANS should be protected by way of grant of personal pay to him from the date of such appointment.

63. It is rather interesting to note that for the first time a reference is made to the appointment of fourth respondent as director of the institute on deputation from NIMHANS though the appointment itself had taken effect from 17-4-2000 in terms of the order passed by the Ministry as quoted in the very noting. It is very clear that the deputation itself has not been placed before the executive council for its approval or ratification. It is rather surprising that the appointment to the post of director at the institute - the highest executive post, whether by way of deputation or by way of recruitment, does not go before the highest decision making body of the institute and figures incidentally before the executive committee that too only when the occasion for fixation of the pay, particularly in the context of protecting the pay of the deputationist as also as a consequence of upgradation and revision of pay scale etc. arises.

64. Though several important decisions, both on the aspects of appointment of director such as inviting applications, paper publications, constitution of selection committee, composition were being decided by the minister, matter going through the selection committee, appearance of candidates and their performance, evaluation, in turn again forwarding the file to the Minister for his approval etc., and further reference to the pending concurrence by the Ministry of Finance for upgradation of the post are all decisions taken one after the other by the Ministry of Health and Family Welfare at the different levels of secretariat None of these developments were either brought to the notice of the executive council nor placed before it. In the entire deliberations of the executive council between 44th and 50th meetings, no other development is either brought to the notice of the executive council or has obtained the seal of approval of the executive council. This clearly indicates that the executive council is either sidelined or is rendered ineffective and at any rate bypassed in all curial decision making process.

65. Though Sri Ashok Haranahalli, learned Senior Counsel for the respondents 1 to 3, by drawing specific attention to the notings in the file submits that the file was being put up to the Minister only in his capacity as chairperson of the executive council, as the minister was acting in dual capacity while primarily being a Minister in the central government, was also the ex officio chairman of the executive council and just because the secretariat had dealt with the file without maintaining much distinction between the files of the government and the file relating to the institute, it cannot be said that the decision making is as part of the central government and that the institute becomes part of the central government, this argument is required to be noticed only to rejected.

66. While the argument that the institute does not become part of the central government is a valid one and is to be accepted, the manner in which the files have been dealt with indicating that the institute is treated only as part of the central government and the necessary demarcating line has not been drawn, then it amounts to the central government usurping the powers which were not required to be exercised by it.

67. It is here one should realize and appreciate the expertise, the visionary thinking and farsightedness of the framers of our Constitution. Article 12 occurring as the first article in Part-III of the Constitution, reads as under:

12. In this context, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of Government of India.

For the purpose of Part-III, the Constitution expressly says that the phrase State includes all local or other authorities within the territory of India or under the control of Government of India. Part-III contains the fundamental rights guaranteed to the citizens of the country, which become enforceable through courts if they are infringed by any State action. The concept of State generally being that of the government and if the action was not governmental action, there was no protection in the sense that the right could not be enforced before a court of law by issue of an appropriate writ against the State or for the protection of the right if violation is attributable to any organs other than the government. It is here that the framers of our Constitution have taken care to include within the meaning of the phrase State even the other authorities and it is in this context courts have laid down principles determining as to which of such authorities are State, within the meaning of this phrase for the purpose of Part-III. The development of law in this regard particularly the understanding and meaning of the phrase State occurring in Article 12 and for the purpose of Part-III has been a process of evolution and ultimately we have reached the stage as indicated in the case of Pradeep Kumar Biswas [supra] and the same having been reiterated in Zee Telefilms Ltd. [supra].

68. The framers of our Constitution expressly wanted to protect the fundamental rights from the invasions of State and have also taken care to ensure that what the State cannot achieve directly shall not be permitted to be achieved indirectly also, by enlarging the scope of expression State as indicated in Article 12 of the Constitution. The framers of our Constitution had very well visualized the possible invasions into the fundamental rights of the citizens by the State by having recourse to indirect methods such as creating autonomous bodies, though controlled and managed by the State, but nevertheless being stripped off of the expression State by being not part of the government and to take shelter under it by having the facade of an autonomous body by contending that the autonomous body is not a State and therefore is immune from scrutiny of courts in the exercise of writ jurisdiction i.e. immune from judicial review of its administrative action.

69. That precisely is the preliminary objection raised in this writ petition by the third respondent institute. That precisely is what was sought to be got over or frowned upon by the framers of our Constitution by clarifying the meaning of State under Article 12 in Part-III of the Constitution. A perusal of the records placed before the court clearly indicates that the matter has been dealt with as though it is a matter pertaining to the government and not that of an autonomous body. If such decision taking process is vitiated or polluted by violating the constitutional guarantee, such decision cannot be shielded from the scrutiny of this Court. It is for this reason, the matter requires examination in the exercise of judicial review of administrative action independent of the question as to whether the third respondent institute can be termed as State or otherwise.

70. However, as discussed and answered, third respondent institution though termed as an autonomous body, also answers the test of the phrase State independent of this also, and the decisions [of the third respondent institute] are also amenable to judicial review of this Court.

71. That leads us to the examination of the merits of the decision taking process. Before taking up this question, I have to examine the submission urged on behalf of the respondents that this question cannot be examined as it is not any right of the petitioner to request this Court to examine the question relating to the action on the part of respondents 1 to 3 as to whether is fair or non-arbitrary, as the petitioner by mere applying to the post of Director has not acquired any right to the post particularly when the selection process had been aborted even before the issue of any appropriate order in favour of the petitioner,

72. Learned Counsel for the respondents 1 to 3 is not right in this submission. The complaint on the part of the petitioner is that the action on the part of respondents 1 to 3 has resulted in violation of the fundamental right under Articles 14 and 16 and therefore the actions and the decisions are vitiated and to be declared as such and quashed etc.

73. In so far as Articles 14 and 16 are concerned, one can appreciate that these two Articles stand on a slightly different footing from the nature of right conferred under the other Articles of the Constitution of India, particularly Articles 19, 20, 21 etc., A comparison between Articles 16 and 19 may be sufficient for our purpose.

74. The right under Article 16 is an assurance to the citizens that the State shall not discriminate in the matter of employment opportunity to the citizens. While it is not a positive right conferred on the citizens but an embargo is placed on the State; a constitutional mandate to the State that while making appointments to offices under the State, it is necessary that the State acts in a fair and non-discriminatory manner, providing equal opportunity to all eligible persons and not to make discrimination only on the grounds of religion, race, caste, sex, descent, place of birth, residence or any of them, though an exception is carved out under Sub-articles 3, 4 and 5. We are concerned with the nature of such a right mentioned therein. The general mandate to the State is to act in a fair and non-discriminatory manner. Under Article 19, the right is a more positive one in the sense that what is available with the citizens should not be taken away by the State and the State should not act in an unreasonable manner, even while restricting the right under this Article.

75. In so far as Article 16 is concerned, one can readily see that while this Article does not give any person any right to employment, when the State decides to employ any person, then while employing a person, the State shall not discriminate from person to person. It is for this reason. I consider that the submission on behalf of the respondents is correct to the extent that no person can claim a right in the matter of employment; that no person can claim a right to any post. In fact it is to be realized that under the Constitution either in Article 14 or 16, no assurance of employment to any person is given under Article 16, but the assurance under Article 16 is only that when employment is provided, a fair opportunity will be accorded to all, that is the mandate to the State to act in a fair manner but not as a right given to the citizens to seek and get employment itself. If at all it is to be a right, it is a right to seek the intervention of courts when the action on the part of the State is vitiated, arbitrary, unfair or discriminatory.

76. It is only in such context of law as developed and as is the test for examination of any cause based on the right under Article 16, scrutiny is confined and not beyond. It is applying such test the matter is required to be examined.

77. Coming to the facts of the present case, it can be recollected that the third respondent institute had advertised the post of director to be filled up in terms of notification at Annexure-B. The process was called off and as indicated in the files of the institute, when it had reached the final stage, in terms of the note dated 13-1-2005. What is urged on behalf of the petitioner is that the development as reflected herein is vitiated, motivated and it is because of the special interest that the fourth respondent has taken in the matter and by the fourth respondent using his position who was facing the prospect of being repatriated to the parent department, that the matter culminated as at present.

78. An examination of the file leading up to this note [note dated 13-1-2005] indicates that ever since the decision was taken to notify the post for filling up and paper publication was issued, the developments were all oriented in that direction. What is significant to be noticed herein is that the issue of upgradation of the post was resolved by the executive council way back in the year 2001 and the matter having been forwarded not only to the Ministry of Health but also in turn forwarded to the Ministry of Finance for concurrence was a development which was to the knowledge and awareness of all authorities. It is not as though this aspect of the matter was not to the knowledge of the central government or the decision making authority. In fact the entire issue is dealt with only by the very Ministry. The process of selection had reached finality and as indicated in the note dated 25-11-2004, it is revealed that the selection committee had chosen a person amongst the applicants as suitable candidate and the matter had been forwarded to the Ministry rather minister for approval in the capacity of the chairman of the executive council, as there was no possibility of executive council meeting in the immediate future and it was also incidentally mentioned that the tenure of the present incumbent (fourth respondent) was drawing to a close, his tenure had been extended for a further of three months from 19-10-2004.

79. This noting indicates that the file had been placed before the Minister for his orders to give effect to the selection made by the Selection Committee for the purpose of appointing one amongst the applicants as a Director of the Institute in furtherance of the paper publication dated 30-3-2004. Further, the noting dated 13-1-2005 on Page 17 under the signature of Smt. Bhavani Thyagarajan indicates that it had been clarified that the issue of upgradation of the post of Director is being taken up with the Ministry of Finance once again and that considering the scope of work and efforts in starting the National Programme for Control of Deafness, the pay scale is revised and post is required to be re-advertised and fresh selection made. It is also indicated that pending finalisation of upgradation of the post by the concerned Ministry, decision on recommendation of the selection Committee may be deferred and the existing incumbent be allowed to continue as a Director.

80. This noting is not only totally at variance with the proposal that had been put up for orders but quite revealing by itself. It indicates that the decision is taken not for the purpose for which the file had been put up and in that context but based on a development that is anticipated and with an expectation that it may go through and the recommendation of the selection committee be put on hold and the existing incumbent be allowed to continue as a Director. The noting clearly indicates that while the action is detrimental to the person who is selected by the selection committee as the selection has not been given effect to, it can only benefit the incumbent in the office whose term is sought to be extended indefinitely pending decision by the other Ministry such as the Finance Ministry about the proposal for upgradation of the post.

81. This is a clear indication of the fact that (sic) the decision making process itself is flawed as the decision that was required to be taken only by the Executive Council though in the absence of the meeting of the Council, could have been taken by the Chairperson, i.e., the Minister acting as Ex Officio in that capacity, the entire decision making process is as part of the working of the Government and the Minister heading the Department and not as part of the Executive Council of the Institute. Though it is sought to be contended by learned Counsel for respondent Nos. 1 to 3 that many of the notings are by the Secretaries, Joint Secretaries who by themselves constitute members of the Executive Council and therefore should be taken to be as part of the decision making process of the council itself, submission is fallacious for the reason that the executive council of the Institute functions as a Body and independently at a meeting called for such purpose in the attendance of all the members of the executive committee and not in the Ministry of Health & Family Welfare, Government of India. Either the Chairman himself or a few of other members of the Executive Council, namely, the Secretary, Government of India, Minister for Health and Family Welfare or his Nominee, Additional Secretary, Joint Secretary, Ministry of Health and Family Welfare etc., by themselves do not constitute the Council or the mini Council functioning at the Secretariat of the Central Government Moreover, the deliberations being not as part of the Meeting of the Executive Council cannot be taken as a substitute, No member of the Council except the Chairman himself can work as a member of the Council outside a Council Meeting. If a decision was required to be taken by the council and it was by circulation and if the matter had received the attention of all the members of the council, perhaps that could have been a situation where the argument that the decision is to be treated as part of the decision of the executive council could have been accepted. But, that is not what had happened. Moreover, even the very decision is flawed as it is a decision on irrelevant consideration, in the sense, a consideration not germane in the context of the order to be issued to the selection made by the Selection Committee. There was no occasion for the discordant note of reference to the issue of clearance from the Ministry of Finance being awaited for (sic) the upgradation of the post and the decision to defer the matter. A decision based on such an irrelevant and derailing note is a decision which is not merely based on irrelevant consideration but amounts to an arbitrary decision not for the purpose of giving effect to the recommendation of the selection committee but one which is virtually for scuttling the same. That in itself indicates the design that the post is ensured to be not filled up by a regular incumbent, but is to be retained vacant and made available to be occupied by the respondent No. 4 either on deputation on ad hoc basis or on further periodic extensions etc.,.

82. It is also ironic that the very note indicates that the respondent No. 4 had completed his term, had over stayed and therefore steps were taken to fill up the post on a regular basis! If the advertisement for filling up the post issued in a paper publication and to public at large inviting application from the eligible persons is not to be carried to its logical conclusion but is to be stalled on irrelevant considerations, it can only lead to the inference that the whole exercise for issuing the advertisement dated 30-3-2004 going through the motion of processing of applications, constituting the selection committee as directed and under the knowledge and order of the Minister and the recommendations being placed before the Minister for issue of orders are all more a sham than for giving effect to or implementation and such action amounts to not only an abuse of the power whether it was with the Government or with the Minister in his capacity as Chairman of the Executive Council and the decision to stall the process of selection and issue of appointment order is nothing but a colourable exercise of the power as the power is not exercised for the purpose of giving effect to the recommendation but is exercised for the purpose of scuttling the recommendation of the selection committee which is a professional body chosen for the purpose and in terms of the directions and instructions of the Ministry, It is not as though it had dawned upon the Ministry or the Minister for the first time; that the issue of upgradation of post was pending clearance with the Ministry of Finance. It was so ever since the year 2001. Even with that awareness and development, a conscious decision had been taken to advertise the post for being filled up, when there was no intervening development contrary or any other developments between the date of publication and the date when the file reached the Minister for his orders with the recommendation of the selection committee, there was absolutely no reason or justification to abort the taking of a decision i.e. the issuing the order for appointment of the candidate recommended by the selection committee by bringing in the issue of pendency of an approval or the concurrence to the proposal of upgradation of the post. It is obvious that it is raised not for any relevant reason or bona fide purpose but only for the object of avoiding the recommendation of the selection committee being given effect to and orders being passed and also to protect the respondent No. 4 who was suggested to be continued pending arrangements being made.

83. It is here that the question of nature of the right as urged by the learned Counsel for the petitioner and as countered by learned Counsel for the respondents is required to be considered and also the effect of the respondent No. 4 functioning as the Director of the Institute and holding a pivotal position of the Member Secretary of the Executive Council and the impact or the bearings of his position on the decision making process that assumes importance.

84. The Institute is a society which (sic) is managed by the Executive Council. The composition of the Executive Council is essentially decided by the Central Government The Executive Council is the prime authority of the Institute in terms of Rule-3 of the rules and regulations of the Indian Institute of Speech and Hearing. The composition indicates that it is dominated by the Union Cabinet Minister of Health & Family Welfare, who acts as the Chairman, the Secretary of the very Ministry or his Nominee, the Directorate General of Health Services, Government of India or his Nominee, Additional Secretary [Health], Joint Secretary, Ministry of Health & Family Welfare, Government of India etc., who are all members of this Executive Council. The powers and functions of the Executive Council are as indicated in Rule-9. Rule-10 indicates the duties of the Director in the absence of Council Meetings, power of the Council is also exercised by the Chairman and such decisions are placed before the Council for approval albeit post facto. If the scheme of rules and bye-laws as had been referred to earlier is examined, it becomes obvious that the entire management of the Institute is with the Executive Council and the Director acts as the Chief Executive Officer of the Institute. It is the Chief Executive Officer of the Institute who prepares the agenda, decides the subject etc., for the Council Meetings, On the administrative side when the Council is not in session and is not meeting, all administrative decisions are taken by the Cabinet Minister, Ministry of Health and Family Welfare who is the Chairperson and the entire processing as by the Director who is the Chief Executive Officer. The position of the Director is such that he is the only person who initiates all actions, for decisions to be taken on behalf of the Institute. All proposals emanate from the Director and the Director is the most significant Officer and is so positioned in the scheme of things so far as the functioning of the Institute is concerned. When a proposal is forwarded for giving effect to the selection of the Selection Committee for appointing a person as a Director, there is no reason why it should not go through. The only person who could have been or who is affected if the proposal for appointing a regular director for the institute as per the recommendation of the selection committee should have been ordered, it is the respondent No. 4 who will have to vacate his place as noticed earlier and strangely the noting dated 13-1-2005 strikes a discordant note to the very proposal and the proposal is stalled. It is in this context, learned Counsel for the petitioner has urged the principles of legal bias and personal bias as having vitiated the action on the part of the respondents.

85. So far as the petitioner is concerned, except for filing the application, it was obvious that the petitioner is not privy to any other developments though learned Counsel for the petitioner on an examination of the record which had been placed before the court has made further submission on the aspect of legal and personal bias and has strongly relied upon the decision of the Supreme Court in the case ofA.K. Kraipak and Ors. v. Union of India and Ors. reported in 1969 (2) SCC 262. While the decision making process is flawed by the power being exercised not in the manner contemplated under the bye-laws/regulations, the very decision is also flawed on applying the principles of bias as indicated in Kraipaks case, the decision that is attributed to the Minister and therefore the order for renotifying the post etc., are all bad.

86. Learned Counsel for the respondents would, however, vehemently urge that principle of bias is not attracted.

87. I am of the view that principle of legal bias as indicated in Kraipaks case are clearly attracted and apply to this case not merely on a perusal of the developments and decisions as revealed from the file notings but also from the very nature of the role and function of the Director of the Institute -respondent No. 4.

88. In this background, if the fourth respondent himself is also a person who is an aspirant to the post and is interested in safeguarding or protecting his present position, it cannot be denied that in view of the existence of the element of personal interest of the fourth respondent, the principle of bias is squarely attracted as such, as the fourth respondent is definitely an interested person in the matter of taking a decision for appointment of any person to the post of Director in the Institute as an order of appointment of any other person as director is an order which can definitely affect or displace the respondent No. 4. So long as the Director is in a position to guide/orient the decision of the Minister or even the Executive Council and there is a subject before the Minister or the Council in which the Director himself is personally interested, the situation is one which inevitably leads to the inference that such decision is vitiated due to the personal interest of the person who is in a position to influence the decision making process of the body or the person who has to take a decision. It is here that the observations of the Supreme Court in Kraipaks case assumes great significance.

89. Of course in Kraipaks case the Supreme Court had an occasion to emphatically view that distinction between a quasi judicial functionary and an administrative functionary as also a quasi judicial order and administrative order is totally blurred and the principle of bias is equally applicable to administrative decisions and this line of thinking having been affirmed and continued all along, the decisions of the respondents are affected on applying the principles of bias and they cannot be sustained. The observation of the Supreme Court in Kraipaks case is that,

with the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving the principles to be observed while exercising such powers. In matters tike these, public good is not advanced by a rigid adherence to precedents. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasi-judicial power. But for the purpose of the present case we shall assume that the power exercised by the selection board was an administrative power and test the validity of the impugned selections on that basis.

90. The further observation in paragraph-15 of Kraipaks case supra is that,

It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keep out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates.

91. If the decision and decision making process both are for the purpose of not only stalling the finalisation of selection process pursuant to the application and publication dated 30-3-2004 as also the decision to renotify or republish the same even in anticipation of obtaining a concurrence for upgradation of the post from the Finance Ministry are both vitiated, all further developments and steps become equally bad. The biased nature of decision making process is very obvious from the very noting which indicates that the post is required to be re-advertised and fresh selection made even when the post of Director as upgraded had not received the concurrence of the Ministry of Finance. As on this day, obtaining of concurrence was a contingent factor. That proposal was pending with the Ministry of Finance for not less than four years. If the experience should have taught anything, it could only lead to the inference that it could remain so further also unless some external force was applied. The possibilities of re-advertising the post and going for fresh selection at that stage was not a reality but a hypothetical one, based on the contingent factor of the Ministry of Finance approving the proposal for upgradation. If such is the reason given for stalling the finalisation of selection process and to keep it in abeyance, the decision betrays itself that it is the design of the noting not to finalise the selection process but to re-advertise the post The decision based on this misleading and irrelevant noting is nothing but an arbitrary, malafide decision. It does not stand the scrutiny of judicial review and when tested on the touchstone of fairness in state action, it is exposed as an arbitrary decision.

92. Though the file contains many other rather interesting and extraneous facts and irrelevant issues also have crept into, the decision making process and are sought to be placed before the Minister, it is not necessary for the purpose of this case to examine those aspects as the examination is confined to testing the validity of the decision on the touchstone of Article 16 of the Constitution of India, on the touchstone of fairness in State action on the question of and according equal opportunity to all citizens in the matter of employment under the State etc....

93. A letter dated 1st June 2005 from the Director of the Institute addressed to the Ministry of Health and Family Welfare, New Delhi, available at page 100 of the Ministers file No. V-19011/2/2004-PH on the subject of selection to the post of Director, All India Institute of Speech and Hearing, Mysore, requesting the Ministry to initiate measures to permanently absorb Dr. M. Jayaram as the Director of the Institute having regard to the tremendous growth of the institute during the directorship of Dr. Jayaram [praising himself and recommending himself to be appointed to the post on a permanent basis] and the contents of the accompanying notings of the Ministry particularly the notings at pages 8, 16, 17, 18, 21, 22, 23, 24, 25, 26, 36 and 37 and the strong favourable notes of the Joint Secretary (Bhavani Thyagarajan) for continuation of the fourth respondent as the Director of the institute indefinitely, even when the process of filling up the post in terms of the recruitment rules was at a final stage is proof enough not only of the fourth respondents personal interest and involvement and aspiration to secure the post on a permanent basis but also reveals as to how the entire decision making process was derailed, because of such interest and involvement on the part of the fourth respondent, as a proposal for appointment of a recommended candidate by the selection committee on the basis of merit is converted into a decision to defer the passing of the order not to issue appointment order but instead await developments which can pave the way for not appointing the selected candidate.

94. The continued presence of the respondent No. 4 at the Institute, particularly, when it can give rise to a conflict in interest for the purpose of filling up the post in open competition from among all eligible persons is a most undesirable thing and though a writ of auo warranto may not lie as is sought for in the writ petition, a writ in the nature of mandamus is required to be issued by this Court to the respondent Nos. 1 to 3 to ensure that the respondent No. 4 is repatriated to his parent organisation forthwith; that the respondent Nos. 1 to 3 can make such other alternative arrangement for the post being manned by any other person till a regular incumbent is appointed.

95. As the decision not only for stalling the selection process pursuant to the application, paper publication advertisement dated 30-3-2004 but also the decision for re-advertising the post and going in for fresh selection in terms of the noting/order dated 13-1-2005 are flawed, being vitiated by arbitrariness and principle of bias, all subsequent action pursuant to such decision like re-advertising the post as also going in for fresh selection does not survive for continuation. All such subsequent action is declared as illegal and quashed. As the selection process pursuant to the earlier advertisement had been kept on hold, it is necessary that this process is completed expeditiously and for this purpose a writ in the nature of mandamus is issued by this Court, directing the respondents to finalise the selection process pursuant to advertisement and to issue an appointment order to fill up the post of the Director at the earliest.

96. The impugned Notification/Paper Publication Advt. No. 4/2005 dated 24-6-2005 published on 30-6-2005 in the Indian Express, News Daily, under Annexure-A and all further proceedings, actions, decisions, pursuant to the same for the purpose of filling up the post of Director at the Institute are all quashed by issue of a writ of certiorari.

97. A writ in the nature of mandamus is issued directing the respondent Nos. 1 to 3 to ensure that the respondent No. 4 is repatriated to the parent department forthwith and further directions issued to respondent Nos. 1 to 3 to finalise the selection process pursuant to the publication dated 30-3-2004 [copy at Annexure-B] at the earliest in accordance with the existing procedure, bye-laws and regulations governing the Institute.

98. Writ petition allowed, awarding cost of Rs. 5,000/- in favour of the petitioner against each of the respondent Nos. 1 to 3.

99. Rule made absolute.