DR. VEENA CHHOTRAY:
1. The applicant, though considered for the post of Director PGIMER Chandigarh, was not selected. Impugning the selection process on various grounds, the OA seeks by way of relief;
Quash and set aside the composition and proceedings of the selection committee with all its consequences.
Direction to rectify the composition of the selection committee and other illegalities as averred in the OA and hold a fresh and transparent selection afresh confining to nominations received from authorized authorities with all its consequences.
Direction to give all consequential benefits to the applicant on the basis of the prayers made.
Besides, calling of the records of the case, direction for payment of litigation cost to the applicant, and passing any other order deemed fit, have been prayed.
2. On behalf of the applicant, the learned counsel Shri A.K. Behera, would appear. The official respondents No.1 to 3 would be represented by the learned counsel Shri Amit Anand, respondent No.4 by the learned senior counsel Shri Nidhesh Gupta with Shri Tarun Gupta, and the respondents No.5 and 6 by the learned counsel Shri Balram Gupta, Senior Advocate with Shri Sudarshan Rajan. Separate counter affidavits have been filed on behalf of these three sets of respondents. A rejoinder on behalf of the applicant to the counter reply to the respondents 1 to 3 has also been filed. Additionally ‘Gist of Submissions’ and Written Submissions respectively dated 21.2.2012 and 23.2.2012 have been filed on behalf of the applicant and the respondents no. 5 and 6. We have heard the learned counsels representing the parties and have also perused the material on record.
3. At the outset, a preliminary objection would be raised on behalf of the counsel for the respondent No.4. It would be stated that the present OA does not contain any challenge to the appointment of the respondent No.4 as the Director PGIMER. The maintainability of the OA would be questioned on this ground. Shri A.K. Behera, the learned counsel for the applicant, would, however, explain the circumstances under which such a challenge had not been made. It would be submitted that when the OA had been filed, no appointment had been made. However, at the time of its initial consideration by the Tribunal, this fact had been brought to the notice of the Vacation Bench. The applicant’s request to file an additional affidavit to bring on record the selection of Shri Y.K. Chawla (respondent No.4) as Director, PGIMER and challenge to the same had been allowed. On a further consideration of the matter by the Division Bench, Shri Y.K. Chawla, in respect of whom an appointment letter had already been issued, was allowed to be impleaded as a necessary party in the present case. In pursuance of these directions, vide the MA No. 3315/2011, an amended memo of parties impleading Shri Y.K. Chawla as respondent No.4 besides the Director PGIMER and Institute body of the PGIMER, were also impleaded as the respondents No.5 and 6. Considering these facts, the preliminary objection on behalf of the respondent No.4 is overruled.
4. The Post Graduate Institute of Medical Education and Research (PGIMER), Chandigarh, is an autonomous body under the Union Ministry of Health and Welfare. It has been declared as an institution of national importance and is governed by a special Parliamentary Act of 1966. Besides, there are 1967 Rules formulated by the Central Government in exercise of the powers conferred under Section 31 of the Act. Additionally, there are 1967 Regulations formulated by the Institute in exercise of the powers under Section 32 of the Act. As per the provisions of the Act, it has its own regulatory bodies, namely the Institute Body and the Governing Body.
5. The claims in the present OA are being agitated in the context of the selection process undertaken for filling up the vacancy of the Director PGIMER, Chandigarh on his retirement w.e.f. 30.04.2011. The brief facts are as below:-
5.1 In order to fill up the post of Director, a circular was issued on 27.12.2010 for inviting nominations from Vice Chancellors of Indian Universities (including Medical Universities), Directors of Centres/Institutions of Medical Education/Medical Research, Members of the Institute Body of PGIMER, Chandigarh and Principals of all the Medical Colleges in India. A notice was published in the leading newspapers on 29.12.2010, besides the circulation of the information through the PGI website. A copy of the advertisement/notice along with the enclosed circular, has been enclosed with the OA as Annex. A-6. The last date for submission of the nominations/applications was 31.1.2011. Further, as per the past practice, the Director had also invited bio data from ten senior most faculty members of the Institute.
5.2 A Special Selection Committee was constituted under Section 23 of the PGIMER Regulations with the approval of the Union Minister of Health and Family Welfare, vide the order dated 1.2.2011. It was an eight member committee to be chaired by the Union Health Minister who is also the president of the PGIMER. The approval of the DOPT was conveyed to the composition of the Search-cum-Selection Committee (Annex. A/13-OA). This was, however, subject to the compliance of the instructions contained in the DOPT OM No. AB.14017/11/2004-Estt.(RR) dated 30th July, 2007 (Annex. A-14-OA).5.3 In response, 24 nominations/applications were received. The bio data and ACR summary of all the nominations/applications were circulated to the members of the Special Selection Committee. In its meeting on 1.4.2011, it was decided by the Committee to constitute a sub committee of four members, comprising the Secretary (HFW) and Technical Experts from renowned Institutes of Eminence, to interview all the 24 applicants and shortlist a panel for consideration of the selection committee. It was further decided that the applicants may be asked to forward in advance a short (five minutes) of presentation of their vision of the Institute and general perception about health care in the country (Annex. A-21/OA).
5.4 The sub committee met on 9.4.2011. Out of 24 candidates, 19 appeared before the sub committee. A decision of benchmarking the candidates on the scale of 100 for the purpose of assessing them was taken. Based on individual assessment, 5 candidates were short listed. Dr. Y.K. Chawla was at No.1 and the present applicant at No.4 bracketed with another candidate (Annex. A-24-Rejoinder).
5.5 The Special Selection Committee in its meeting on 21.4.2011, considered the sub committee’s recommendations and agreeing with them forwarded the shortlisted panel for consideration of the Institute Body (Annex. A/29-Rejoinder).
5.6 This was considered by the Institute Body in its meeting on 21.4.2011. The strength of the panel was now reduced and the order of preference was also changed. Instead of the earlier 5 (with one co-bracketing) now a three-member panel was recommended. The name of Dr. Y.K. Chawla was placed at No.2. The applicant was not among the list of the recommended candidates (Annex. A/30-Rejoinder).
5.7 As per Rule 7(3), the appointment to the post of Director has to be made with the prior approval of the Central Government. The recommendations of the Institute Body were considered by the ACC, which approved the name of Dr. Y.K. Chawla for appointment as the Director, PGIMER, Chandigarh. Consequently, Dr. Chawla has been appointed as the Director.
6. The instant OA has challenged the legality of the selection process adopted in the present case. It is the case of the applicant that the impugned selection process was contrary to the provisions of the PGIMER Act, Rules, Regulations and the DOPT OM dated 30.7.2007. It is also alleged to be arbitrary and non-transparent. The applicant is aggrieved that despite his representations, the respondents had gone ahead with the selection process. The salient grounds taken in support of these contentions are briefly mentioned below:
6.1 The foremost plea is about the constitution of the selection committee being not as per law. It has been argued that the selection committee was constituted by the orders of the Minister, as the President of the Governing Body, whereas as per Section 11(1) of the Act, the power vests in the Institute Body. (ii) Further, it would be argued that of the total 8 members 3 were persons other than members of the Institute which was in contravention of the second proviso of Regulation 23. (iii) A violation of Regulation 23(1) would also be averred on the ground that the mandatory participation of the Director of the Institute was missing from the membership.
(iv) The constitution of the selection committee would also be contended to be not in conformity with the guidelines as prescribed by the DOPT OM dated 30.7.2007, which was the condition of the DOPT approval to the composition of the selection committee. Referring to Para 4.1 (VIII) of this circular, it would be argued that as prescribed in the guidelines, the members of the committee should be at least one level above the post to which recruitment was being made. However, in the present case, this was not followed uniformly. (v) Again referring to Para 4.1(VII), the argument would be that for Secretary level posts (as is the case of the post of Director PGI), the committee should be chaired by a distinguished academician. However, in the present case, the Union Minister Health had himself chaired the selection committee.
6.2 The selection process has also been challenged on the ground of constitution of the sub committee. It is averred that the selection committee delegated its power to a group of four members of the selection committee and such sub delegation is not permissible. Shri A.K. Behera, the learned counsel for the applicant, would argue that the selection committee acts as an indivisible body and there is no provision under the Act, Rules or Regulations for further sub delegation. It would also be contended by the learned counsel that the entire selection committee has not conducted the interview, nor assessed the merit of the competing candidates. Thus, the process of selection would be stated to have been vitiated.
6.3 The applicant’s contention is that the norms and criteria for selection in this case had not been finalized in advance. On the other hand, the sub committee merely based its recommendations on the basis of individual assessment of the members. Shri A.K. Behera, the learned counsel for the applicant, would also take exception to the assigning of the total marks to the candidates in the final assessment sheet, without break up in individual parameters.
To reinforce this contention, reliance would also be placed on para 5 (viii) of the DOPT OM dated 30.07.2007. This prescribes that where the appropriate recruitment rules or regulations do not incorporate the eligibility conditions for the post, the criteria for selection should be finalized by the autonomous institutions with the concurrence of the Ministry and the same shall be made widely known well in advance of the selection. The OA also questions the holding of the interview on the ground of non-mention thereof in the circular inviting nominations.
6.4 An allegation of arbitrariness in processing of the matter at the stages of the Sub Committee, Special Selection Committee, the Institute Body and even the ACC would be levelled. The applicant’s learned counsel would endeavour to establish this point by submitting that the meetings of the Special Selection Committee and of the Institute Body were held on the same date. It would also be argued by the learned counsel that the matter had been considered by the Institute Body as a special agenda under ‘other matters’ without a prior circulation of the agenda note on the subject. Non-accord of any reasons while changing the order of merit by the Institute Body would also be argued by the learned counsel. Further, an averment has been made in the OA about the approval of the ACC being taken by suppressing the relevant material from it.
6.5 The shortlist in question, as prepared by the Sub Committee and considered by the Selection Committee as well as the other Bodies, is also stated to be vitiated. (i) It had included the name of a candidate exceeding the prescribed maximum age of 60 years (Dr. Amod Gupta). As per the learned counsel for the applicant, this was done without exercising the power of relaxation by the competent authority. Further, it would be argued that as it is an exceptional power, it can justifiably be exercised only when right candidates within the prescribed age limit are not available. (ii) The shortlist had included some tainted candidates i.e. Dr. Raj Bahadur; who did not have vigilance clearance or about whom adverse vigilance report had been received.
6.6 The application of the selected candidate (i.e. the private respondent No.4) would be contended to be defective and in any case, he was much less meritorious than that of the applicant. In support of this contention, it would be submitted that as per the advertisement, nominations had been sought from the authorized persons, bodies and institutes in a prescribed pro forma with the consent letter of the candidate. In case of Dr. Chawla, there was no nomination from an authorized source instead just one nomination was there from ‘an unsolicited quarter’ (A-11-OA). It is also submitted that there was no consent form in this case. Quite to the contrary, in the case of the applicant, the highest number of nominations had been received (15 authorized and 8 unauthorized). Despite that the respondent No.4 had been given preference over the applicant, which showed prima facie deficiency in fairness.
6.7 Another ground raised in the OA (though not argued in oral submissions by the applicant’s counsel) would be about alleged non-finalization of recruitment rules for the post before issuance of the Circular seeking the nominations. A deviation in the form of relaxation of age from that mentioned in the RRs of AIIMS and thereby violation of PGIMER Regulation 7 (5) would be alleged. Besides, it would also be averred that the concurrence/approval of DOPandT had not been obtained, as was necessary.7. The claims in the OA have been opposed by the respondents.
7.1 As a preliminary objection, the OA is averred to be barred by estoppel. Having duly participated in the selection process and failed to be ultimately selected and appointed, the present OA is stated to be legally untenable. It has also been averred by the respondents that the applicant had a right of consideration; and he had been fully considered upto the level of the Institute Body, which is the Appointing Authority. Thus, having fully taken the chance and not having been selected, it would be contended not to be open to the applicant to challenge the selection process. In support, the Apex Court’s decision in Chandra Prakash Tiwari and Ors vs Shakuntala Shukla and Ors {(2002) 6 SCC 127} would also be cited.
7.1.1 As the other legal ground the well settled principle of law has been evoked that the Selection Committee, consisting of experts and other eminent persons, is the best judge to select a candidate and - except in cases of allegations of mala-fide -judging the capability of a candidate or determining who is a better and more suitable candidate, is stated not to be within the realm of judicial review. The Counter Reply filed on behalf of the private respondent no.4, asserting the uniform application of rules in case of all candidates and the selected and appointed incumbent being duly qualified, has raised the additional ground of the OA not challenging the rules and regulations as such.
7.2 It is the common ground emphasized in all the Counter Affidavits that the PGIMER is an autonomous body governed by an Act of Parliament and its own rules and regulations. It has been reiterated by all the respondents that the selection of the incumbent was made as per the due process in accordance with the Act, Rules and Regulations.
8. The factual contentions in the OA have also been rebutted at length in the Counter Affidavits. For this purpose, we are mainly referring to the Counter Reply filed on behalf of the Respondents no.1 and 3. In any case, in their short Affidavit, the respondents no. 5 and 6 have stated about adopting this very Counter Affidavit. The Counter Affidavit filed by the respondent no.4 has been referred by us as an additional basis, wherever found necessary. We have also adverted to the subsequent Written Submissions on behalf of the respondents no. 5 and 6 as per need. The submissions made on behalf of the respondents are summed up below.
8.1 Constitution of Selection Committee: It has been submitted that as per Rule 7 (3) appointment to the post of Director is to be made by the Institute with the prior approval of the Central Government. Further, regulation 23 has been referred in support of the Institute body being competent to constitute an ad hoc committee like the Search and Selection Committee in the present case.
Accordingly, the constitution of this Special Selection Committee is stated to be as per the decision of the Institute body in its meeting held on 17.1.2011. The orders of the Union Minister of Health and Family Welfare dated 1.2.2011 according the final approval (being referred in the OA, Annex. A/13) are also submitted to be in his capacity as President of the Institute. The approval of the DOPT in the composition of the committee, as required under rule 7 (3) has also been emphasized.
8.1.2 The exception taken in the OA to some members of the Selection Committee not fulfilling the criteria of one step higher than the post for appointment, (as per the DOPT OM of 30.7.2007) has been rebutted by stating that such a prescription is only as a general guideline, not mandatory in nature. It is also submitted that the guidelines are required to be followed only in a reasonable and practicable manner. As per the respondents, since the post of the Director is a Secretary level post, it was not practically possible to include all the members who would have been one step higher in the pay structure in the post of Director.
8.1.3 As regards the other infirmities pointed out in the matter of composition of the Selection Committee, Shri Balram Gupta, the learned senior counsel would draw our attention to Section 22 of the PGIMER Act. This inter alia contains a provision regarding any act and proceeding of the Institute, Governing Body or any Committee under the Act not being questioned on ground of defect in the constitution of such bodies. The Ld. Senior Counsel Shri Gupta would contend this to be an overriding provision. It would further be argued by the Ld. Counsel that there was a rationale behind incorporating such a provision under the Act i.e. while the general provisions in respect of constitution of a body had been formulated keeping in view the objectives of the Act; however, all the time strict and literal application of such provisions may not be practically possible. The learned counsel would also emphasize that the essential point was to constitute the Search and Selection Committee, with a composition meant to achieve the objectives of the Act. As per the learned counsel, the Selection Committee comprising the eminent experts in the field and the highest Government authorities could not be flawed on this account.
8.2 Issue of Sub-Committee: Contending the objections raised on this score being uninformed and unfounded, it has been submitted that the Sub-Committee had only been assigned the task of short-listing and there was no delegation of any of the powers of the Special Selection Committee. Para 3, Preliminary Submissions of the CA makes the following averments:-
“That a Sub-Committee of four members from amongst the members of Special Selection Committee was constituted to interview the eligible candidates for the post of Director, PGIMER, Chandigarh. It is wrong to suggest that the Special Selection Committee had delegated its power to the aforementioned Sub-Committee to select a candidate for the post of Director, PGIMER, Chandigarh. In fact there were 24 candidates, whose applications/nominations were received. Out of these 24 candidates, 19 candidates appeared before the Sub-Committee. Since a large number of candidates were eligible, it was quite appropriate to assign the task to the experts who could assess the bio-data’s and the presentations of all the candidates and thereafter make their recommendations.”
The CA by the Pvt. Res. 4 has also averred about the recommendations of the Sub-Committee being kept in a ‘sealed cover’ to maintain the purity of the selection process.
8.3 Alleged Arbitrariness in processing: Allegations of arbitrariness in processing of the matter at any level have also been rebutted.
8.3.1 At the level of the Sub-Committee, it is stated that out of 24 applicants 6 had remained absent. The merit of remaining 18 candidates had been individually assessed by this expert committee. Marks had been given out of a total of 100 by assessing the candidate’s bio-data, presentation, vision and their other medical and administrative achievements and capabilities. As per the respondents, the short-listing of 5 candidates had been done on the basis of a fair and objective assessment, without any impropriety. The CA by the Pvt. Res-4 also submits about the process of assessment having continued from 8.30 am upto 4.30 pm. Further, it has been emphasized that whereas in the past the candidates under consideration had not been required to appear before the Committee, in order to avoid creeping of any element of subjectivity, it had been considered appropriate that the candidates would make their presentation and the Sub-Committee would assess them. The presentation with regard to the vision of the Institute has been contended to be the best parameter to assess the suitability of the candidates.
Arguing that in this case most matured minds were being assessed, it is submitted that there was no requirement of awarding marks under different subjects. In support, the Apex Court’s judgment in Dr. Keshav Ram Pal vs UP Higher Education Service Commission {AIR 1986 SC 597} has been cited. In this case, a view was taken that for want of any specific instructions on the subject, it was not obligatory for the Interview Board to sub-divide total marks into sub-heads. The following observations of the Hon’ble Apex Court have been relied upon:-
“On the other hand, in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied.”
Besides, the Apex Court’s decision in Anzar Ahmed vs State of Bihar and Ors along with Mr. Abid Asghar vs State of Bihar and Ors {SLR 1993 (5) 798} has also been adverted to. In this case it was held by the Hon’ble Apex Court that the principles governing the allocation of marks in a selection based on written and viva voce tests cannot be made applicable to a selection when no written test is held and selection is based on interview only.
8.3.2 As per the respondents, the method adopted by the Special Selection Committee to short-list the candidates by authorizing the Sub-Committee was a ‘scientific’ one. Further, the subsequent endorsement of the recommendations made by the Sub-Committee is also stated to be as an informed decision by assessing the suitability of the candidates and keeping in mind the overall assessment as per the detailed appraisal by the Sub-Committee.
8.3.3 Negating any arbitrariness at the level of the Institute body, it is submitted that this is the competent body for appointment of the Director, in consultation with the Central Government. Further, as per the respondents, the Institute Body had considered the overall assessment of the candidates, marks obtained during presentation, seniority and other relevant factors. The impression of an apparent arbitrariness being sought to be created by the applicant citing the meetings of both the Selection Committee and the Institute Body on the same date, and the latter under a special agenda, has been rebutted by the respondents. The urgency and paucity of the time in view of the impending retirement of the incumbent Director on 30.4.2011 and the administrative requirement for completing the selection process before that date has been submitted. Besides, considering that the Members of the Institute Body are very senior and eminent persons including senior doctors, administrative officers and the Union Health Minister; difficulties in holding the meetings of the Institute Body have been submitted.
8.3.4 The respondents have refuted any allegation of arbitrariness in processing of the matter while obtaining the approval of the Appointment Committee of the Cabinet (ACC). It is submitted that after following the due selection process, the names of three candidates as approved by the Institute Body had been referred by the Ministry of Health and Family Welfare to the DOPandT for obtaining the approval of the ACC. On such an approval being obtained only, the acting Director Dr. Y.K. Chawla, was appointed as The Director, PGIMER on 7.10.2011.
8.3.5 Stoutly rebutting any allegations of arbitrariness or favouritism in the impugned selection process, the respondents have also placed reliance on the apex court’s decision in M.V. Thimaiah and Ors vs Union Public Service Commission and Ors {(2008) 2 SCC 119} where the Administrative Law was laid down that such pleas are usually raised by an interested party in selection processes and the court should not draw any conclusion unless allegations are substantiated beyond doubt.
8.4 Inclusion of allegedly ineligible candidates in the short-list:
8.4.1 Responding to the objection regarding inclusion of the names of candidates above the maximum age of 60 years; this has been explained in the background of the extension of the maximum age limit for the post of Director from 60 to 65 years of age. Further, relaxation of the maximum age limit of 60 years (as per the advertisement) has been justified in the larger public interest to attract the best talent available in the country, without being hampered on the ground of being slightly over-age. Para 4.15/CA submits that the benefit of relaxation of age dispensation had been considered only in the case of one short-listed candidate, viz. Dr. Amod Gupta. However, as in the final analysis, he was not selected, the occasion for relaxation in age dispensation had not arisen.
8.4.2 The other objection of inclusion of ‘tainted candidate’ in the short-list has also been factually rebutted. This had pertained to only one candidate, Dr. Rajbahadur. Para-wise reply 4.30 and 4.31 makes the following submissions:
“In reply to para 4.30 and 4.31 it is submitted that a total of 24 applications were received for the post of Director, PGIMER, Chandigarh. Out of these 24 candidates, 13 were from the PGI itself. Vigilance clearance pertaining to 12 candidates from the PGI was received. However, vigilance clearance of one candidate was withheld by the PGI Authorities as there were disciplinary proceedings pending against him at that point of time. There were 11 outside candidates. Vigilance clearance qua 8 outsider candidates was received. It is pertinent to mention here that vigilance clearance of all the 5 shortlisted candidates was received. It is further submitted that vigilance clearance certificate dated 18.3.2011 received from PGIMER, Chandigarh has stated that the no case from vigilance angle is pending or contemplated in the Vigilance Cell of PGIMER, Chandigarh against Dr. Raj Bahadur, Professor, Dept. of Orthopeadics. He has worked in PGI during the period from 23.1.2006 to 30.11.2007. He then proceeded on deputation to GMCH, Chandigarh w.e.f. 1.12.2007 (FN). Letter dated 26.4.2011 (Annexure-R-5) received from Chief Vigilance Officer, Chandigarh Administration which inter-alia stated that there is no major/minor penalty. Vigilance Inquiry No.1/Vig./R against Dr. Raj Bahadur filed by the competent authority vide No. GMCH-LC/LA-1-15(ii) dated 9.5.2008, has been closed as advised by the CVC vide their letter dt. 30.11.2005. In Vigilance inquiry No.19/Vig/C, a warning was issued to dr. Raj Bahadur vide letter dated 17.9.2010 and case closed. Further, it has been stated that the outcome of the vigilance inquiry No.17 Vig/C dated 17.5.2007 will be informed to the Ministry. The integrity certificate has been issued by the Medical dept. of UT Admn (Annexure R-6). The CVC vide letter dated 15.9.2011 has agreed with the recommendation of Chandigarh Administration for not initiating minor penalty proceedings against Dr. Raj Bahadur, Orthopaedic Surgeon, GMCH, Chandigarh.”
8.5 Respondent 4-s application being ‘defective’:
Applicant being more meritorious:
To explain the averment in the OA regarding solicited/unsolicited nominations, it has been submitted that besides the calling forth of nominations from certain specified quarters, as per their 27.12.2010 Circular; as per the past practice, the Director, PGI had also issued letters to the 10 senior-most Professors there to apply. The use of the expression ‘unsolicited’ in the reply to the RTI question of the applicant is acknowledged to be a mistake.
In respect of the Pvt. Res.4, besides a direct application, a nomination had been received from The Director, Institute of Liver and Billary Sciences, New Delhi, a deemed university, which was an authorized source. The respondents have clarified that the higher number of nominations in favour of a candidate was not the criteria for selection in this case. Thus, this contention of the applicant is also stated to be utterly misconceived.
8.6 Non-Finalization of RRs before issuance of Circular seeking nominations:
8.6.1 We may complete the cycle by coming to the starting point of the selection process regarding non-finalization of RRs on the point of the condition in the nomination circular about relaxation in age limit. This contention has also been rebutted by the respondents. It has been submitted that by an amendment in the year 2007/2009he PGIMER Act, because of extension in the age of superannuation, both the Director as well as other faculty members could hold Office upto the age of 65 years. A corresponding amendment in the Recruitment Rules was also thus necessitated. This amendment was approved by the President of the Institute on 16.12.2010 and subequently approved by the Institute Body in its meeting held on 17.1.2011. It is further stated that as per the provisions under Rule 7(5) read with Regulation 32, the Institute Body has the requisite competence in the matter and this does not require the approval of the DOPT.
9. In the submissions dated 21.2.2012 on behalf of the applicant, the respondent’s arguments in respect of the impact of Section 22 of the Act have been rebutted. Several grounds have been taken: (i) This provision does not save the inherent lack of jurisdiction in constituting the special selection committee. (ii) It is not an over riding provision; on the other hand this is to be read in consonance with the other provisions of the Act. (iii) The words used ‘defect in the Constitution’.. ‘of the Committee’ occurring in this section must be given a restricted meaning to make it in harmony with Section 10 (5) of the Act and Articles 14 and 16 of the Constitution of India.
9.1 As per the respondents, while making the above contentions, the scope of Section 22 of the Act has not been understood in correct perspective. Even if the Section does not start by saying ‘notwithstanding any thing contained in any other provision of the Act’. It would not in any manner restrict the scope of this Section. (ii) Section 22 overrides the rules and regulations under which the Committees are constituted, and no alleged defect in their constitution would be questioned so as to render any act or proceedings to be invalidated. (iii) No restriction can be introduced, which is not provided in specific provisions of the Act, in respect of the meaning attributed to this Section. (iv) Accepting the applicant’s contention would render Section 22 redundant. (v) In any case in the present case, there was no inherent lack of jurisdiction. (vi) In the absence of any challenge to the vires of Article 22 of the Act, Articles 14 and 16 cannot be brought into play.
9.2 To reinforce the contention of arbitrariness, the decision of the Punjab and Haryana High Court in Dr. Sudha Suri vs Union of India and Ors in CWP Nol.11211 of 2001 for selection of Dean, PGIMER has been cited. This is with the averment that holding the respondent’s action as violative of fair play in administrative action, the writ had been allowed and the impugned selection quashed. This judgment had also attached finality with the dismissal of the SLP by the Apex Court.
10. Having carefully considered the respective submissions and the material on record, our observations / findings on various relevant aspects are briefly stated below:
10.1 The averment of the constitution of the Selection Committee being illegal ‘the main plank of the claims in the OA’ and being in contravention of the relevant statutory provisions, rules, regulations and the DOPandT Circular dated 30.7.2007 is not found to be tenable:
(a) The contention that whereas the competence in this regard lies with the Institute, but in this case the Selection Committee had been constituted by the approval of the Union Minister, HandFW as the President of the Governing Body ignores certain relevant facts and misinterprets others. It is not disputed that the approval of the Union Minister had been accorded in pursuance of a decision taken in the meeting of the Institute Body. Further, the provisions of Section 10 of the Act pertaining to ‘Governing Body and other Committees of Institute’ would come into play. As per Sub-Section 1, the Governing Body of the Institute is constituted by the Institute itself. Sub-Section 3 provides about the President of the Institute being the Chairman of the Governing Body. Thus, the President of the Institute and the Chairman of the Governing Body is the same person. Hence, to argue that the approval of the Minister had not been accorded as the President of the Institute would not be correct.
(b) Even if in a case there are some defects in composition of the Committee, the same would not vitiate the selection process in view of the over-riding provisions of Section 22 of the Act. This would also cover the infirmities alleged on account of non-observance of certain regulations. The provisions of Section 22 are extracted below:
“22. Acts and proceedings not to be invalidated by vacancies, etc:
No act done or proceeding taken by the Institute, Governing Body or any standing or ad-hoc committee under this Act shall be questioned on the ground merely of the existence of any vacancy in, or defect in the constitution of the Institute, Governing Body or such standing or ad-hoc committee.”
The objections raised on behalf of the applicant as to the impact of the Section 22 being an overriding provision, are not found to be sustainable considering the rebuttals that have come forth from the respondents. The language of this Section is clear and unambiguous. Any attempt to interpret it differently would be sheer legal sophistry. As was observed by the Hon’ble Apex Court in Union of India and Ors vs A.K. Narula {(2008) 1 SCC (LandS) 656}:
While interpreting rules we cannot add words or create a situation not envisaged therein this would amount to legislating which is beyond our purview.
It would also be apt to reiterate at this point the settled principle of law that Rules, Regulations and executive instructions are all subservient to the statutory provisions of an Act.
(c) The reliance on the DOPandT OM dated 30.7.2007 (Annex A/14-OA) in this context is also found to be misconceived. By this Circular, the DOPandT had reviewed in entirety the earlier instructions on the subject of setting up of Search Committees/Search-Cum-Selection Committees. Separate guidelines had been prescribed for Search Committees for posts in the Government and for Search-cum-Selection Committees for posts in autonomous / statutory bodies. The principles applicable in case of the former were laid down in para 4.1 and for the latter in para 5. As regards the applicability of the principles enunciated in para 4.1 in case of autonomous bodies, it was stated that they would ‘generally apply’. Besides, certain specific principles made applicable in case of autonomous bodies had been prescribed by para 5.
The perceptional error in the argument of the applicant stems from the fact that disregarding the broad guiding principles enunciated for Search Committees under the Government, only a few provisions have been picked up to allege the contravention of the DOPandT instructions. To further elaborate this point, the salient principles laid down in para 4.1 are: (i) open advertisement with a minimum period of at least four weeks for the candidates to respond; (ii) non-inclusion of any person recipient of a grant/funding from the Ministry; (iii) a well balanced composition of the committee with persons of appropriate standing having acknowledged expertise in the relevant field of specialization; (iv) avoidance of the tendency to rely on the same experts year after year. There is no averment in the OA of any of these guidelines being disregarded in the present case. On the other hand, the flaws picked are under the sub-para vii (providing for the Search Committee for a Secretary level post being chaired by a distinguished academician) and sub-para viii (in the case of Officers of Government, autonomous bodies, PSUs etc, the nominated Members of the Committee being at least one level above the post under recruitment).
The respondents have explained the circumstances under which it was not found practicable to comply with these guidelines. In any case, even considering these guidelines as sacrosanct (which proposition itself would be questionable), as per the prescription under the Circular, the principles applicable for posts in the Governments are to apply for the autonomous bodies, not mandatorily, but only ‘generally’.
Once again, even such perceived infirmities would have the protective cover of the overriding provisions of Section 22 of the PGIMER Act.
(d) It would also be appropriate to extract the composition of the Search-cum-Selection Committee, which is being challenged in the present OA:
| Sl. No. | Name | Designation |
| (1) | Shri Ghulam Nabi Azad | Union Health and F.W. Minister, and President, PGIMER Chairman |
| (2) | Shri K. Chandramouli | Secretary, M/o Health and F.W., GOI Member |
| (3) | Dr. R.K. Srivastava | DGHS Member |
| (4) | Dr. V.M. Katoch | Secretary, HR and DG, ICMR Member |
| (5) | Dr. Rajan A. Badwe | Director, Tata Memorial Hospital and Cancer Research Institute, Mumbai Member |
| (6) | Dr. N.K. Ganguly | President, JIPMER, Punducherry Member |
| (7) | Seyed E. Hasnain | Vice-Chancellor, University of Hyderabad, Hyderabad Member |
| (8) | Dr. Satish Chandra | Director, NIMHANS, Bangalore Member |
10.2 It has been argued by the applicant that the selection process got vitiated by constitution of the Sub-Committee of the Search-cum-Selection Committee. Such a sub-delegation is averred to be contrary to law. As per the Advanced Oxford Dictionary, ‘delegation’ means ‘the process of giving somebody work or responsibility that would usually be yours’. This contention is also not borne out considering the factual gamut of the case:
(a) In response to the Circular issued by the Institute, 24 nominations / applications had been received. These were considered by the Selection Committee in its meeting on 1.4.2011 (Annex. A/21-OA). The bio-data and ACRs summary of the candidates had been circulated to all the Members of the Committee as a part of the agenda notes. The Selection Committee had taken a unanimous decision to constitute a sub-committee comprising the Union Secretary, HandFW, The D.G., ICMR along with the Director of Tata Memorial Hospital, Cancer Research Institute, Mumbai and the Director, NIMHANS, Bangalore. The constitution of this smaller four Members expert committee was done with a view to interview all the applicants and prepare a panel of four for consideration of the selection committee. In this very meeting, the Committee had also prescribed the guidelines that each applicant should be asked to forward in advance a short presentation (five minutes) of their vision of the Institute and general perception about health care.
(b) As stated above, the sub-committee had met on 9.4.2011 and after interviewing the 18 candidates who had appeared had assessed them and prepared the final assessment sheet, assigning scores by way of bench marking the candidates on the scale of 100 (Annex A/24-Rejoinder). The special selection committee had met once again on 21.4.2011 and after consideration endorsed the short listed panel as per the sub-committee’s recommendations (Annex A/29-Rejoinder).
(c) Considering the facts of the case, we are unable to find anything objectionable or legally untenable on the part of the Selection Committee by constituting the Sub-Committee. We also do not find the present case being one of ‘non-application of mind’ or an ‘uninformed decision’. On the other hand, what is noted is the assigning of the exercise of meeting all the individual candidates to a smaller group (the fact of all the four Members being from the main Committee itself needs emphasis). This is as a facilitating mechanism. The contention of the respondents about the present system being an improvement over the earlier practice in which there were no interviews with the candidates and was evolved to ensure a better and more objective assessment of the merit of the candidates merits serious consideration.
(d) The contention of the applicant’s learned counsel about there being no provisions in the Act, Rules or Regulations for such a ‘sub-delegation’ can be matched with the counter contention of there also not being any provision expressly barring evolving of such facilitating mechanisms.
10.3 Even as regards the incorporation of the condition regarding relaxation in the maximum age limitation i.e. the maximum age limit of 60 years relaxable if candidates falling in certain categories like serving or retired Government servants or persons from autonomous institutions or statutory bodies or exceptionally qualified candidates the contentions raised are not found to be tenable when viewed in the light of the relevant provisions of law. Both the relevant rule 7 (5) as well as the regulation 32 (1) vest the power in this respect in the ‘Institute’. These are extracted below:
“Rule 7 (5): The method of recruitment, the age limit, the educational qualifications and other matters relating to the appointments to various posts in the Institute shall be determined in the manner provided for by regulations.”
“Regulation 32(1): Age, experience and other qualifications for appointment to a post shall be as specified by the Institute keeping in view the qualifications and experience prescribed by the Central Government for similar posts before applications of candidates are called for subject to the condition that non-medical personnel shall not be appointed to the posts of Director and Medical Superintendent.”
In view of this specific provision under these Rules and Regulations any general guidelines on the subject requiring approval of DOPandT before amendment in the RRs would not be applicable in the instant case. The amendment in this case had been initially (before the nominations were invited) approved by the Union Minister, HandFW in his capacity as the President of the Institute and subsequently (before the selection) ratified by the Institute Body.
The averment of the provision regarding age relaxation not being in consonance with the provisions for Director, AIIMS, Delhi, is also not acceptable considering the amendment in Section 11 of the Act as well as the provisions under the Regulation 32 (1):
“(1A) The Director shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of sixty-five years whichever is earlier.
Provided that any person holding office as a Director immediately before the commencement of the All India Institute of Medical Sciences and the Post Graduate Institute of Medical Education and Research (Amendment) Act, 2007, shall in so far as his appointment is inconsistent with the provisions of the sub-section, cease to hold office on such commencement as such Director and shall be entitled to claim compensation not exceeding three month’s pay and allowances for the premature termination of his office or of any contract of service.”
and the provisions in the Regulation 32 (1) have already been cited in the preceding para.
10.4 The contention of non-prescription of the norms and procedures of selection in advance is based on Para 5 (viii) of the DOPandT Circular dated 30.7.2007. The following guideline has been prescribed:-
“(viii) Appropriate Recruitment Rules/Regulations for the post involved shall be formulated by the administrative Ministry, wherever the relevant statutes do not incorporate the eligibility conditions. The norms and criteria for selection, shall, in any case, be finalized by the autonomous institution, with the concurrence of the Ministry concerned and the same shall be made widely known well in advance of the selection;”
10.4.1 However, since in this case there are provisions under the relevant rules and regulations, those would prevail. Rule 7 (5) states about the method of recruitment, age limit, educational qualifications and other matters relating to appointments to a post in the Institute to be determined in the manner provided for by regulations. The relevant regulation 32 (1) has been extracted in the foregoing paragraph. It inter alia provides for the qualifications like age, experience and other qualifications to be specified by the Institute keeping in view the stipulations incorporated therein.
10.4.2 In this case, along with the Circular inviting nominations, a detailed annexure had been enclosed specifying inter alia the educational qualifications, experience as well as age limit for the post of Director. This was under Rule 7 (5) read with Regulation 32. Further, the body of the Circular, after highlighting the responsibilities of the Institute had made clear the qualities expected in the candidates whose names were to be nominated:
“The Institute, would require a person who has, in addition to high attainments in the medical profession, administrative ability and qualities of leadership to give direction to such a large and complex institution dealing with postgraduate medical education, medical research and health care. The statement showing the prescribed qualifications, the scale of pay and term of service with regard to this post is attached as (Annexure-I).”
It had been reiterated that the exercise of nomination was not meant to serve as an application form to be filled in by the candidate, but was intended to provide the Selection Committee with information about the candidate to assist the Selection Committee in making a proper choice. It had also been clarified that the proforma also gave an idea of the qualities and particulars of the candidates which were to be considered by the Selection Committee. However, any additional information that could be of help in making the choice could be provided.
10.4.3 Considering the above, the contention now being made about non-prescription of the prescribed norms and procedures in advance is simply on the ground of the holding of the interview in the present case. However, in service jurisprudence, interviewing the candidates before finalization of selection is an established mode to assess their relative merit. As submitted by the respondents, introduction of this system was an improvement over the previous practice. The decision for assessing the comparative merit of all the applicants through an interview was taken by the Search and Selection Committee. It had also directed that the candidates should prepare in advance a short presentation of the vision of the Institute and general perception about health care in the country.
10.4.4 While assessing the individual merit of the candidates, the sub-committee had, inter alia, taken into consideration the short presentation by each candidate, as per the guidelines stipulated by the Special Selection Committee. As a mark of comparative merit of the candidates appearing in the interview, gradation by way of overall marks scored on a scale of 100 had been prepared. The contention being raised on behalf of the applicant about the same not being transparent for want of breakup of the scores in different parameters, has not been found acceptable in the overall factual gamut of the case. Besides, as per the decisions of the Apex Court cited in Dr.K.R. Pal (supra) and Anzar Ahmed (supra), such a breakup is not a mandatory methodology in all situations for purposes of validation of a selection process.
10.4.5 We have gone through the judgment of the Punjab and Haryana High Court in Dr. Sudha Suri’s case, cited on behalf of the applicant pressing the contention of alleged arbitrariness. In this case, the petitioner, who had been working as a Professor in the Department of Radiology of the same Institute, had challenged the appointment of one Dr. Onkar Nath Negi, Professor and Head of Department of Orthopedic Surgery to the post of Dean of PGIMER. While upholding the challenge to the impugned selection process, the Hon’ble High Court had arrived at the factual finding of the want of competence of the Governing Body (which had made the appointment in this case) to make appointment to the post of Dean. Further, the other ground of challenge about no reasons / basis having been recorded either by the recommending or even by the selecting authority for overlooking the claim of the petitioner and other senior eligible doctors working in the Institute had also been found factually to rest on sound basis. The Hon’ble High Court had found that except the two lined minutes of the Government Body meeting, there was no written record available before the Court to show the criteria, basis and methodology adopted for selection in this case.
The facts of the present case, as elaborated at length in the foregoing paragraphs, suffice to show that they are markedly distinguishable from Sudha Suri’s case. In Collector of Central Excise, Calcutta vs Alnoori Tobacco Products and Anr {2004 (6) SCC 186} while propounding the doctrine of circumstantial flexibility, the Hon’ble Apex Court had frowned upon disposal of a case by placing blind reliance on a decision, since one additional or different fact may make a world of difference between conclusions in two cases.
10.4.6 We are unable to find any flaw in the aforesaid decisions or the modus operandi adopted in the present case; nor are we able to agree with the plea now being raised on there having been any violation of any prescribed regulation in this regard.
10.5. The other pleas advanced alleging arbitrariness in the selection process like (a) the meetings of the Selection Committee and Institute Body according final recommendations regarding the panel being held the same day, and the latter without under the regular agenda; (b) the short-listed panel containing the names of allegedly ‘ineligible’ and ‘tainted’ candidates; (c) the application of the finally selected candidates being ‘defective’; (d) the applicant being more meritorious by virtue of higher number of nominations - are also not found to have any substantive merit. The respondents have furnished detailed factual rebuttals in respect of most of these. These pleas appear more like an attempt to catch the straws rather than advancing any substantive arguments.
10.6 The claims are also not found to be in consonance with the settled principles of law:
(a) In B.C. Mylarappa Alias Dr. Chikkamylarappa vs Dr. R. Venkatsubbaiah and Ors {(2009) 2 SCC (LandS) 148} the Hon’ble Apex Court had held that scrutiny made by expert academicians when no malafides alleged, were not to be interfered in judicial review.
(b) Further, the applicant having participated in the selection process and having been considered fully till the level of the Institute Body (the Appointing Authority in this case) is also precluded from challenging the process itself as vitiated. In its judgment in Chandra Prakash Tiwari’s case (cited by the respondents), the Hon’ble Apex Court had reiterated the law laid down in its earlier judgment in Om Prakash Shukla’s case {1986 Supp. SCC 285} that when a candidate appears at the examination without protest and is subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise.
As we have not found any contravention of the Act, Rules, or Regulations; the defence taken by the applicant’s learned counsel about there being no estoppel against law, would also not be available in the present case.
11. After a close look at the facts of the case, we do not find any ground of arbitrariness, malafide or violation of the principles of fair play and reasonableness held to be the touchstones of any administrative action. We also do not find the applicant’s pleas of the selection process being in contraventions of the Act, Rules and Regulations as acceptable.
Resultantly, the OA is found to be devoid of merit and dismissed hereby with no order as to costs.