Dr. V. Indiramma Vs. National Institute of Mental Health and Neuro Sciences, Bangalore and Others - Court Judgment

Excerpt:
- [s. abdul nazeer, j.] code of civil procedure, 1908 — order 23 rule 3-b -representative suit — compromise of — leave of the court - the suit in question is a representative suit which comes within the explanation(d) of order 23 rule 3-b of c.p.c. — the explanation to order 23 rule 3-b of cpc explains the meaning of the words ‘representative suit’ employed in sub-rule (1) of order 23 rule 3-b of cpc. explanation (d) of order 23 rule 3-b of cpc states that a representative suit means, any other suit in law in which the decree passed may, by virtue of the provisions of cpc or of any other law for the time being in force, bind any person who is not named as party to the suit. bombay public trust act comes within the expression ‘any other law for time being in force’. it is settled that the decision under section 50 of the act binds not only the parties to the suit but also those who are interested in the trust. the judgment operates as a judgment in rem and is not merely a judgment in personem. admittedly, the compromise has been entered into by the parties without the leave of the court. in the circumstances, the compromise entered into between the parties is void and it requires to be recalled. i.a. no. 1/2008 is allowed and i.a. no. iii/2008 is dismissed.   - i have perused the entire file that has been made available to me as well. besides, one do not know what was the minimum qualification prescribed for that post and whether the 2nd respondent possessed that qualification as well. 9. there is yet another aspect as well while considering this question. has the selection committee that power to create such a post as well? these informations must be made known to all prospective applicants as well and there should be definite indications to ascertain as to what would be the lower post. had they also known that under qualified persons can also apply and similar indulgence as is shown to the 2nd respondent would also have been extended to them as well, then certainly there would have been a larger number of applicants from whom a better assessment of suitability could have been made to make appointment to the lower post. in respect of the said advertisement for the post of lecturer in psychiatric social work which the respondent-institute, both the 2nd respondent as well as the petitioner and five others were called for the interview. mahendra sharma, lecturer in clinical psychology as well as dr. the notification did not reserve any power with the authorities to relax the qualifications as well. a premier institution like the 1st respondent should not have indulged in such a conduct. he is not so as well. the aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. it amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. the selection of the 2nd respondent in pursuance to annexure-b, to borrow the expression of the supreme court, is clearly a fraud practised by the 1st respondent on the public. annexure-a is therefore clearly not sustainable. 15. the case even, if it does not help the petitioner directly, is an indicator how favouritism and undue preference can spoil the fair image of a prestigious institution like the 1st respondent. 2,000/-.21. before parting with this case, this court wishes to record its deep anguish and sorrow regarding how certain quarters in a premier institution like the 1st respondent brings about discredit to the fair image of the institution built up over these years.order1. though this case does not serve any purpose to the petitioner, it discloses the unhappy state of affairs prevailing in the 1st respondent-institution in the matter of recruitment of teaching faculty in the said institution. in the light of allegations traded by the petitioner, i requested mr. gururajan, learned counsel appearing for the 1st respondent to make available to this court the entire files. the learned counsel made available to the court all the relevant files and i have perused the same.2. the petitioner alleges that she has put in 30 years of service and that she is fully qualified and that ignoring her legitimate claim, the 2nd respondent has been appointed as assistant professor in psychiatric social work. this contention is strongly refuted by respondents-1 and 2. we will examine the facts of the case and resolve the dispute.3. the 1st respondent issued annexure-b advertisement inviting application to the post of assistant professor of psychiatric social work in a project described as icmr project. the notification prescribed the following qualifications:'2. one assistant professor (psychiatric social work) qualification.--(a) first or second class master's degree in social work or allied discipline or its equivalent, (b) ph.d./d.sc. in medical or psychiatric social work from a recognised university or institute. experience.--4 years teaching and/or research experience in the discipline after obtaining the ph.d. degree. age: 45 years, pay scale: rs. 1,300-60-1,720'.4. the petitioner did not possess the qualification; nor did the 2nd respondent. the advertisement also stated that the appointment was for the duration of the project period of three years but some of the appointees were likely to be made permanent. as the petitioner did not possess the qualification she did not apply; but despite the fact that he did not possess the qualification, the 2nd respondent applied. it is seen from the files that he was the lone applicant for the post and he was selected to be appointed as the lecturer in the said discipline which is admittedly not a notified post. the 2nd respondent joined the icmr project as per annexure-c appointment order.5. after the 2nd respondent joined the project annexure-d was issued modifying the terms and conditions of annexure-c appointment order in the following manner:'1. line one of para (1) of the appointment order may be corrected as 'the post is permanent but the appointment is on officiating basis'. 2. add at the end of para 1: on completion of the tenure of appointment in the centre for research on community mental health of icmr, will revert back to service in the respective departments at nimhans. further, the service rendered will count for seniority in the service of nimhans from the date of joining the post in the centre'.during the tenure of the annexure-c appointment the petitioner alleges, that the 1st respondent issued annexure-e advertisement inviting applications for the post of assistant professor in psychiatric social work and the petitioner was an applicant. she alleges that the selection process was abandoned in the middle. but later without anything more, it is alleged that the 2nd respondent was favoured with annexure-a appointment as-assistant professor in the discipline. the petitioner alleges that annexure-a is the first ever appointment that the 2nd respondent gained with the 1st respondent and that as there was no other previous appointment to the 2nd respondent under the 1st respondent, the clause introduced by annexure-d to annexure-c would not apply and as such annexure-a is an illegal appointment camouflaged by anncxure-d. this appointment annexure-a as also annexure-d whereby annexure-c appointment was modified are challenged in this writ petition. the petitioner has made the following prayers in the writ petition:'(i) issue a writ order or direction in the nature of certiorari quashing the corrigendum dated 21-4-1987 bearing no. nimh/aca-c/icmr : accm:/lect/87-88, annexure-d and the o.m. dated 30-6-1990 bearing no. nimh/aca-d/icmr/proj/rsm/90-91 annexure-a in the interest of justice and equity. (ii) issue a writ order or direction in the nature of quo warranto ousting the 2nd respondent from the post of assistant professor in psychiatric social work in the 1st respondent-institute in the interest of justice and equity. (iii) issue of writ order or direction in the nature of mandamus directing the first respondent to complete the process of recruitment initiated as per annexure-e and to make appointment to the posts of assistant professor and lecturer in psychiatric social work forthwith in the interest of justice and equity'.6. a very lengthy statement of objection has been filed by the 1st respondent. 1 will refer only to the relevant allegations material to answer the issues in dispute. the 1st respondent states that neither the petitioner nor the 2nd respondent possesses the qualification for the post of assistant professor in psychiatric social work advertised as per annexure-b; but nevertheless the 2nd respondent was appointed as lecturer invoking clause 8 in the advertisement which is to the following effect:'8. if the candidate is not suitable for the post applied for the selection committee may recommend the candidate for a lower post. in case of highly qualified candidate the selection committee may recommend to a higher post than the one advertised'.it is alleged that the petitioner had not responded to annexure-b; that while the 2nd respondent was working as lecturer on being selected in pursuance to annexure-b, there was yet another advertisement (issued on 6-12-1986) inviting application for appointment as lecturer in the same discipline in question and the petitioner as also the 2nd respondent applied and as the 2nd respondent was already in service he was selected and appointed. after the 2nd respondent was selected, he was allowed to continue his employment in the icmr project. while so, in the light of the recommendation of the pay commission the post of lecturer was re-designed as assistant professor and thus the status of the 2nd respondent was also re-designed as assistant professor in psychiatric social work. after annexure-e was issued, it was discovered that the government had not released required funds to meet the salary and other expenses, if and when the recruitments were made and therefore, that recruitment was abandoned. now after the period of his tenure with the icmr project, the 2nd respondent reverted to 1st respondent as assistant professor in the light of the clause introduced by annexure-d amendment. consequently, annexure-a was issued.7. i have heard mr. d'souza, learned counsel for the petitioner, sri gururajan for the 1st respondent and sri manohar for the 2nd respondent. i have perused the entire file that has been made available to me as well.8. as can be seen, the answer to the dispute lies in a narrow sphere. it is not disputed that the 2nd respondent did not possess the qualification prescribed for the post in question advertised in annexure-b. the argument of the counsel was that as he was not qualified, the 2nd respondent was not selected to the post advertised, but, he was selected and appointed as a lecturer in psychiatric social work invoking clause 8 extracted above. existence of this post of lecturer was admittedly not advertised. besides, one do not know what was the minimum qualification prescribed for that post and whether the 2nd respondent possessed that qualification as well. further, i am afraid that the said clause cannot be applied as has been done in the instant case. all that the said clause empowers is that, if there be a qualified candidate for the advertised post possessing the minimum qualification but he is not suitable to hold the post of assistant professor, he can then be considered for being appointed to a lower post. this does not at all postulate applying this powers for the relaxation of the basic qualification and making any selection. the selection to a lower post can be done if at all permissible only from among otherwise qualified persons. in the first place, the consideration of the question whether a candidate is suitable or not, willarise only among those who possess the minimum qualification; the consideration of an under qualified candidate cannot enter the area of consideration whether he is suitable or not to hold a lower post as it is not to be expected that such a person would have ever applied at all to the post. therefore, no unqualified hand can be considered whether he is suitable to hold a lower post. as such, clause 8 referred to above cannot be invoked to justify the selection of the 2nd respondent as a lecturer.9. there is yet another aspect as well while considering this question. what clause 8 states is that if suitable candidate is not available for the post, the selection committee may recommend the candidate for a lower post. if that be the position, is there not a need to disclose to the prospective applicant the existence of that lower post? or rather, should there not exist as a matter of fact, a lower post against which the selection committee recommend the appointment? or, is it that the selection committee can create a lower cadre post to accommodate the so called suitable candidate? has the selection committee that power to create such a post as well? these informations must be made known to all prospective applicants as well and there should be definite indications to ascertain as to what would be the lower post. i am of the view that for all these reasons unless the advertisement also discloses the existence of a lower post against which an appointment can be made on being found suitable, it is not possible to invoke that clause to create a post and make an appointment. to recognize any such inherent power with the selection committee would lead to recognize an unbridled power which can be invoked at any time to tailor the fancy of the selection committee. that apart, conceding of such power will also lead to diluting the sanctity of such selection. as such, unless the existence of the lower post for which appointment the selection committee would make its recommendation is also made known to the prospective applicant, it is not permissible for the selection committee to recommend the candidate for a non-existent lower post.10. in this case the only person who responded to annexure-b advertisement was the 2nd respondent. perhaps other persons might not have applied in response to annexure-b because they did not have had the matching qualification notified in annexurc-b. had they also known that under qualified persons can also apply and similar indulgence as is shown to the 2nd respondent would also have been extended to them as well, then certainly there would have been a larger number of applicants from whom a better assessment of suitability could have been made to make appointment to the lower post.11. there is yet another aspect to be adverted to in this behalf. in the statement of objections the 1st respondent has stated as under:'7. in the meanwhile there was an advertisement for the post of lecturer in psychiatric' social work in the respondent-institute. the last date for applying for the said post being 7-1-1987 and the 2nd respondent applied for the said post on 29-12-1986 and the respondent 2 was also called for an interview vide the interview call letter 17-2-1987 fixing the date of interview on 1-3-1987 at9.30 a.m. in respect of the said advertisement for the post of lecturer in psychiatric social work which the respondent-institute, both the 2nd respondent as well as the petitioner and five others were called for the interview. the eligibility nothing of the head of the department who had scrutinized the applications made a specific note on 2nd respondent that he is already employed as a lecturer in the icmr and that the petitioner is a pass class in masters degree and placed before the selection committee that she had not obtained her ph.d. degree as on the date of interview. it is pertinent to state that in the meanwhile the officer-in-charge of the icmr advanced centre, nimhans, bangalore brought to the knowledge of the director, nimhans, bangalore who is respondent 1 vide his letter dated 26-2-1987 that the faculty members of the icmr advanced centre on community mental health are to be absorbed in the faculty post of the 1st respondent-institute and appropriate appointment order have to be issued/appointment orders already issued have to be suitably modified. it was also brought to the notice of the director of 1st respondent-institute that the same has to be done in the case of one. mr. mahendra sharma, lecturer in clinical psychology as well as dr. k. sekar, lecturer in psychiatric social work, namely respondent herein above'.now this appointment is relied on by the 1st respondent to contend that on the expiry of the term of appointment in the icmr project as per annexure-c, in pursuance to the clause introduced by annexure-d, the 2nd respondent was issued with annexure-a order. this, according to sri gururajan, learned counsel for the 1st respondent is merely a reversion of the 2nd respondent to the post held by him in the parent department. in other words, the counsel asserts that the 2nd respondent had held a post in the parent department on the eve of expiry of annexure-c appointment. as the learned counsel for the petitioner asserted that the 2nd respondent did not hold any such appointment, i perused the papers relating to the said selection. it revealed the following materials:12. in pursuance to the advertisement issued to the post of the lecturer on 6-12-1986, nine persons including the petitioner and the 2nd respondent applied. of them 8 persons attended the interview. after the interview the committee made the following report:'the selection committee interviewed all the candidates who have appeared for interview. the committee verified the qualifications possessed by each candidate, research experience and number of publications in the respective field with reference to qualifications prescribed for the aforesaid post as per cadre and recruitment rules. the selection committee after considering the requirements mentioned above and on the basis of the performance at interview make the following recommendations: xxx xxx xxx the committee noted that there is a sc candidate, sri k. maruthi raju who is working as psychiatric social worker. he is not found suitable for this post. hence, the post is not filled up'.in other words, even the 2nd respondent was not found suitable for selection to be appointed as a lecturer. the specific recording of the committee is that the 'post is not filled up'. therefore, the averments in the statement of objection referred to above and the assertion of the learned counsel mr. gururajan is completely incorrect. these facts disclose two things, namely:--(i) that the 2nd respondent did not have any substantial appointment with the 1st respondent when annexure-c appointment expired to invoke the clause introduced by annexure-d; (ii) that the selection committee which interviewed the 2nd respondent within six months of his earlier appointment as lecturer by annexure-c on 28-11-1986 found him unsuitable for appointment as a lecturer for the very same discipline when he was interviewed on 1-3-1987; (iii) that despite few months of experience, the 2nd respondent as a lecturer in the discipline, still he was found not suitable to be selected as a lecturer when he was interviewed specifically for the post.this certainly does not lend support to the theory of the 1st respondent that when the 2nd respondent was found not suitable for the post of assistant professor, when he applied in response to annexure-b, still he was found suitable to be appointed as a lecturer as per annexure-c. the finding of the selection committee itself on 1-3-1987 is after an interview that the 2nd respondent was found unsuitable for appointment as a lecturer in the very particular discipline where he was working knocks the bottom out of the case of 1st respondent in this behalf. one fails to understand as to what is the meaning attributed by the 1st respondent to the expression 'suitable' occurring in clause 8 referred to supra.13. when once the 1st respondent stipulated the qualification as per annexure-b and invited applications it was holding out to the public that it will not consider or entertain the applications submitted by lesser qualified persons. that holding out prevents other persons possessing lesser qualification from even tendering himself as a candidate. the notification did not reserve any power with the authorities to relax the qualifications as well. the notification did not also disclose existence of a lower post as contemplated in clause 8 thereof. in such a situation entertaining the application of the 2nd respondent favourably and selecting him as lecturer in psychiatric social work is indeed a fraud on the power of the 1st respondent. a premier institution like the 1st respondent should not have indulged in such a conduct. it should not have allowed itself to yield to safeguard the interest of one individual and should not have evinced so much interest to appoint the 2nd respondent. one would have appreciated this undue interest being shown had thecandidate been a meritorious individual. he is not so as well. within six months of the earlier adjudging him as suitable by the 1st respondent for the post of the lecturer, the expert committee who interviewed him specifically for that post found that he is not fit to be appointed as a lecturer, the identical post for which he was appointed as per annexure-c. in a similar exercise indulged by another institution, the supreme court stated as under:'6. it must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. the aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. it amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. no court should be a party to the perpetuation of the fraudulent practice. we are afraid that the tribunal lost sight of this fact'. (see district collector and chairman, vizianagayan social welfare residential school society, vizianagaram and another v m. tripura sundari devi).the facts in the present case is parallel to that case. the selection of the 2nd respondent in pursuance to annexure-b, to borrow the expression of the supreme court, is clearly a fraud practised by the 1st respondent on the public. that selection alone earned the 2nd respondent annexure-a appointment. and as such, annexure-a is born out of a fraud. the end certainly should not justify the means. annexure-a is therefore clearly not sustainable.14. now, the case of the 1st respondent that for paucity of funds annexure-e selection was abandoned. at the same breath the 1st respondent states that the 2nd respondent continued against the advertised post. these are really inconsistent pleas and amounts to contradictions. obviously when the 1st respondent has gone totally and unjustifiably out of the way to accommodate the 2nd respondent as a lecturer even when it is demonstrated that he is not suitable for the post, necessarily one is inclined to think that the 1st respondent had treated it as its mission to 'plant' him in the institution under some pretext; that alone can be the only explanation to support the appointment of the 2nd respondent as an assistant professor as per annexure-a.15. the case even, if it does not help the petitioner directly, is an indicator how favouritism and undue preference can spoil the fair image of a prestigious institution like the 1st respondent. the 1st respondent should conduct a soul searching and identify as to who is responsible for this fiasco. it is this institution which has to deal with psychologicaldisorder of innumerable people who approach them. but one wonders what would happen if the very institution itself is straining under certain undisclosed 'psychological' disorder in the matter of recruitment to its own faculty.16. an argument was strenuously urged that as the petitioner is not qualified, she has no locus standi to maintain the writ petition. the observation of the supreme court in case of district collector and chairman, quoted above is the answer to this contention. that apart, this institution exist for the public and not to serve the interest of either the petitioner or the 2nd respondent. the public is hence aggrieved if such inappropriate recruitment is made. it is they who have to approach such physicians working in the institution, if they fall ill. they are hence entitled to be protected from such unqualified persons messing up with their life and health.17. for the reasons stated above, as the 2nd respondent did not have a valid appointment to fall back upon on the expiry of annexure-c appointment as the clause introduced by annexure-d is not applicable to the 2nd respondent and as annexure-a appointment having not been admittedly made after inviting application and due selection, the same is liable to be quashed. i do so.18. now, admittedly there had been a post of assistant professor in psychiatric social work advertised in annexure-e which post was being held by the 2nd respondent till today. when annexure-a appointment is quashed that post falls vacant and the 1st respondent can fill up the said post. the 1st respondent shall conduct a selection to that post reckoning the qualifications of the candidates as it stood on the date of annexure-e advertisement. the experience acquired by the 2nd respondent by virtue of annexure-a appointment shall not be taken into account.19. the lengthy defence raised by the 1st respondent can be epitomized by quoting what scrutton l., j. said in grears limited v pearman and corder limited.'honest belief in an unfounded claim is not malice; but the nature of the unfounded claim may be evidence that there was not an honest belief in it. it may be so unfounded that the particular fact that it is put forward may evidence that it is not honestly believed'.20. the writ petition has to be allowed. i quash annexure-a. the petitioner is entitled to the costs from respondents 1 and 2. advocates fee rs. 2,000/-.21. before parting with this case, this court wishes to record its deep anguish and sorrow regarding how certain quarters in a premier institution like the 1st respondent brings about discredit to the fair image of the institution built up over these years. one has to remember that it isto the 1st respondent, one has to turn to, when afflicted with illness. and if such an institution itself is labelled with a conduct as illustrated in this case, one can only turn in despair and think ruefully as to wherewe are heading to.

Judgment:
ORDER

1. Though this case does not serve any purpose to the petitioner, it discloses the unhappy state of affairs prevailing in the 1st respondent-Institution in the matter of recruitment of teaching faculty in the said Institution. In the light of allegations traded by the petitioner, I requested Mr. Gururajan, learned Counsel appearing for the 1st respondent to make available to this Court the entire files. The learned Counsel made available to the Court all the relevant files and I have perused the same.

2. The petitioner alleges that she has put in 30 years of service and that she is fully qualified and that ignoring her legitimate claim, the 2nd respondent has been appointed as Assistant Professor in Psychiatric Social Work. This contention is strongly refuted by respondents-1 and 2. We will examine the facts of the case and resolve the dispute.

3. The 1st respondent issued Annexure-B advertisement inviting application to the post of Assistant Professor of Psychiatric Social Work in a project described as ICMR project. The notification prescribed the following qualifications:

'2. One Assistant Professor (Psychiatric Social Work)

Qualification.--(a) First or Second Class Master's Degree in Social Work or allied discipline or its equivalent, (b) Ph.D./D.Sc. in Medical or Psychiatric Social Work from a recognised University or Institute.

Experience.--4 years teaching and/or research experience in the discipline after obtaining the Ph.D. Degree. Age: 45 years, Pay Scale: Rs. 1,300-60-1,720'.

4. The petitioner did not possess the qualification; nor did the 2nd respondent. The advertisement also stated that the appointment was for the duration of the project period of three years but some of the appointees were likely to be made permanent. As the petitioner did not possess the qualification she did not apply; but despite the fact that he did not possess the qualification, the 2nd respondent applied. It is seen from the files that he was the lone applicant for the post and he was selected to be appointed as the Lecturer in the said discipline which is admittedly not a notified post. The 2nd respondent joined the ICMR project as per Annexure-C appointment order.

5. After the 2nd respondent joined the project Annexure-D was issued modifying the terms and conditions of Annexure-C appointment order in the following manner:

'1. Line one of para (1) of the appointment order may be corrected as 'the post is permanent but the appointment is on officiating basis'.

2. Add at the end of para 1: On completion of the tenure of appointment in the Centre for Research on Community Mental Health of ICMR, will revert back to service in the respective departments at NIMHANS. Further, the service rendered will count for seniority in the service of NIMHANS from the date of joining the post in the Centre'.

During the tenure of the Annexure-C appointment the petitioner alleges, that the 1st respondent issued Annexure-E advertisement inviting applications for the post of Assistant Professor in Psychiatric Social Work and the petitioner was an applicant. She alleges that the selection process was abandoned in the middle. But later without anything more, it is alleged that the 2nd respondent was favoured with Annexure-A appointment as-Assistant Professor in the discipline. The petitioner alleges that Annexure-A is the first ever appointment that the 2nd respondent gained with the 1st respondent and that as there was no other previous appointment to the 2nd respondent under the 1st respondent, the clause introduced by Annexure-D to Annexure-C would not apply and as such Annexure-A is an illegal appointment camouflaged by Anncxure-D. This appointment Annexure-A as also Annexure-D whereby Annexure-C appointment was modified are challenged in this writ petition. The petitioner has made the following prayers in the writ petition:

'(i) Issue a writ order or direction in the nature of certiorari quashing the corrigendum dated 21-4-1987 bearing No. NIMH/ACA-C/ICMR : ACCM:/LECT/87-88, Annexure-D and the O.M. dated 30-6-1990 bearing No. NIMH/ACA-D/ICMR/PROJ/RSM/90-91 Annexure-A in the interest of justice and equity.

(ii) Issue a writ order or direction in the nature of quo warranto ousting the 2nd respondent from the post of Assistant Professor in Psychiatric Social Work in the 1st respondent-Institute in the interest of justice and equity.

(iii) Issue of writ order or direction in the nature of mandamus directing the first respondent to complete the process of recruitment initiated as per Annexure-E and to make appointment to the posts of Assistant Professor and Lecturer in Psychiatric Social Work forthwith in the interest of justice and equity'.

6. A very lengthy statement of objection has been filed by the 1st respondent. 1 will refer only to the relevant allegations material to answer the issues in dispute. The 1st respondent states that neither the petitioner nor the 2nd respondent possesses the qualification for the post of Assistant Professor in Psychiatric Social Work advertised as per Annexure-B; but nevertheless the 2nd respondent was appointed as Lecturer invoking Clause 8 in the advertisement which is to the following effect:

'8. If the candidate is not suitable for the post applied for the selection committee may recommend the candidate for a lower post. In case of highly qualified candidate the selection committee may recommend to a Higher post than the one advertised'.

It is alleged that the petitioner had not responded to Annexure-B; that while the 2nd respondent was working as Lecturer on being selected in pursuance to Annexure-B, there was yet another advertisement (issued on 6-12-1986) inviting application for appointment as Lecturer in the same discipline in question and the petitioner as also the 2nd respondent applied and as the 2nd respondent was already in service he was selected and appointed. After the 2nd respondent was selected, he was allowed to continue his employment in the ICMR Project. While so, in the light of the recommendation of the Pay Commission the post of Lecturer was re-designed as Assistant Professor and thus the status of the 2nd respondent was also re-designed as Assistant Professor in Psychiatric Social Work. After Annexure-E was issued, it was discovered that the Government had not released required funds to meet the salary and other expenses, if and when the recruitments were made and therefore, that recruitment was abandoned. Now after the period of his tenure with the ICMR project, the 2nd respondent reverted to 1st respondent as Assistant Professor in the light of the clause introduced by Annexure-D amendment. Consequently, Annexure-A was issued.

7. I have heard Mr. D'Souza, learned Counsel for the petitioner, Sri Gururajan for the 1st respondent and Sri Manohar for the 2nd respondent. I have perused the entire file that has been made available to me as well.

8. As can be seen, the answer to the dispute lies in a narrow sphere. It is not disputed that the 2nd respondent did not possess the qualification prescribed for the post in question advertised in Annexure-B. The argument of the Counsel was that as he was not qualified, the 2nd respondent was not selected to the post advertised, but, he was selected and appointed as a Lecturer in Psychiatric Social Work invoking clause 8 extracted above. Existence of this post of Lecturer was admittedly not advertised. Besides, one do not know what was the minimum qualification prescribed for that post and whether the 2nd respondent possessed that qualification as well. Further, I am afraid that the said clause cannot be applied as has been done in the instant case. All that the said clause empowers is that, if there be a qualified candidate for the advertised post possessing the minimum qualification but he is not suitable to hold the post of Assistant Professor, he can then be considered for being appointed to a lower post. This does not at all postulate applying this powers for the relaxation of the basic qualification and making any selection. The selection to a lower post can be done if at all permissible only from among otherwise qualified persons. In the first place, the consideration of the question whether a candidate is suitable or not, willarise only among those who possess the minimum qualification; the consideration of an under qualified candidate cannot enter the area of consideration whether he is suitable or not to hold a lower post as it is not to be expected that such a person would have ever applied at all to the post. Therefore, no unqualified hand can be considered whether he is suitable to hold a lower post. As such, Clause 8 referred to above cannot be invoked to justify the selection of the 2nd respondent as a Lecturer.

9. There is yet another aspect as well while considering this question. What Clause 8 states is that if suitable candidate is not available for the post, the Selection Committee may recommend the candidate for a lower post. If that be the position, is there not a need to disclose to the prospective applicant the existence of that lower post? Or rather, should there not exist as a matter of fact, a lower post against which the Selection Committee recommend the appointment? Or, is it that the Selection Committee can create a lower cadre post to accommodate the so called suitable candidate? Has the Selection Committee that power to create such a post as well? These informations must be made known to all prospective applicants as well and there should be definite indications to ascertain as to what would be the lower post. I am of the view that for all these reasons unless the advertisement also discloses the existence of a lower post against which an appointment can be made on being found suitable, it is not possible to invoke that clause to create a post and make an appointment. To recognize any such inherent power with the Selection Committee would lead to recognize an unbridled power which can be invoked at any time to tailor the fancy of the Selection Committee. That apart, conceding of such power will also lead to diluting the sanctity of such selection. As such, unless the existence of the lower post for which appointment the Selection Committee would make its recommendation is also made known to the prospective applicant, it is not permissible for the Selection Committee to recommend the candidate for a non-existent lower post.

10. In this case the only person who responded to Annexure-B advertisement was the 2nd respondent. Perhaps other persons might not have applied in response to Annexure-B because they did not have had the matching qualification notified in Annexurc-B. Had they also known that under qualified persons can also apply and similar indulgence as is shown to the 2nd respondent would also have been extended to them as well, then certainly there would have been a larger number of applicants from whom a better assessment of suitability could have been made to make appointment to the lower post.

11. There is yet another aspect to be adverted to in this behalf. In the statement of objections the 1st respondent has stated as under:

'7. In the meanwhile there was an advertisement for the post of Lecturer in Psychiatric' Social Work in the respondent-Institute. The last date for applying for the said post being 7-1-1987 and the 2nd respondent applied for the said post on 29-12-1986 and the respondent 2 was also called for an interview vide the interview call letter 17-2-1987 fixing the date of interview on 1-3-1987 at9.30 a.m. In respect of the said advertisement for the post of Lecturer in Psychiatric Social Work which the respondent-Institute, both the 2nd respondent as well as the petitioner and five others were called for the Interview. The eligibility nothing of the Head of the Department who had scrutinized the applications made a specific note on 2nd respondent that he is already employed as a Lecturer in the ICMR and that the petitioner is a Pass Class in Masters Degree and placed before the Selection Committee that she had not obtained her Ph.D. degree as on the date of interview. It is pertinent to state that in the meanwhile the Officer-in-Charge of the ICMR Advanced Centre, NIMHANS, Bangalore brought to the knowledge of the Director, NIMHANS, Bangalore who is respondent 1 vide his letter dated 26-2-1987 that the faculty members of the ICMR Advanced Centre on Community Mental Health are to be absorbed in the Faculty post of the 1st respondent-Institute and appropriate appointment order have to be issued/appointment orders already issued have to be suitably modified. It was also brought to the notice of the Director of 1st respondent-Institute that the same has to be done in the case of one. Mr. Mahendra Sharma, Lecturer in Clinical Psychology as well as Dr. K. Sekar, Lecturer in Psychiatric Social Work, namely respondent herein above'.

Now this appointment is relied on by the 1st respondent to contend that on the expiry of the term of appointment in the ICMR Project as per Annexure-C, in pursuance to the clause introduced by Annexure-D, the 2nd respondent was issued with Annexure-A order. This, according to Sri Gururajan, learned Counsel for the 1st respondent is merely a reversion of the 2nd respondent to the post held by him in the parent Department. In other words, the Counsel asserts that the 2nd respondent had held a post in the parent Department on the eve of expiry of Annexure-C appointment. As the learned Counsel for the petitioner asserted that the 2nd respondent did not hold any such appointment, I perused the papers relating to the said selection. It revealed the following materials:

12. In pursuance to the advertisement issued to the post of the Lecturer on 6-12-1986, nine persons including the petitioner and the 2nd respondent applied. Of them 8 persons attended the interview. After the interview the Committee made the following report:

'The Selection Committee interviewed all the candidates who have appeared for interview. The Committee verified the qualifications possessed by each candidate, research experience and number of publications in the respective field with reference to qualifications prescribed for the aforesaid post as per cadre and recruitment rules. The Selection Committee after considering the requirements mentioned above and on the basis of the performance at interview make the following recommendations:

xxx xxx xxx The Committee noted that there is a SC candidate, Sri K. Maruthi Raju who is working as Psychiatric Social Worker. He is not found suitable for this post. Hence, the post is not filled up'.

In other words, even the 2nd respondent was not found suitable for selection to be appointed as a Lecturer. The specific recording of the Committee is that the 'post is not filled up'. Therefore, the averments in the statement of objection referred to above and the assertion of the learned Counsel Mr. Gururajan is completely incorrect. These facts disclose two things, namely:--

(i) that the 2nd respondent did not have any substantial appointment with the 1st respondent when Annexure-C appointment expired to invoke the clause introduced by Annexure-D;

(ii) that the Selection Committee which interviewed the 2nd respondent within six months of his earlier appointment as Lecturer by Annexure-C on 28-11-1986 found him unsuitable for appointment as a Lecturer for the very same discipline when he was interviewed on 1-3-1987;

(iii) that despite few months of experience, the 2nd respondent as a Lecturer in the discipline, still he was found not suitable to be selected as a Lecturer when he was interviewed specifically for the post.

This certainly does not lend support to the theory of the 1st respondent that when the 2nd respondent was found not suitable for the post of Assistant Professor, when he applied in response to Annexure-B, still he was found suitable to be appointed as a Lecturer as per Annexure-C. The finding of the Selection Committee itself on 1-3-1987 is after an interview that the 2nd respondent was found unsuitable for appointment as a Lecturer in the very particular discipline where he was working knocks the bottom out of the case of 1st respondent in this behalf. One fails to understand as to what is the meaning attributed by the 1st respondent to the expression 'suitable' occurring in Clause 8 referred to supra.

13. When once the 1st respondent stipulated the qualification as per Annexure-B and invited applications it was holding out to the public that it will not consider or entertain the applications submitted by lesser qualified persons. That holding out prevents other persons possessing lesser qualification from even tendering himself as a candidate. The notification did not reserve any power with the authorities to relax the qualifications as well. The notification did not also disclose existence of a lower post as contemplated in Clause 8 thereof. In such a situation entertaining the application of the 2nd respondent favourably and selecting him as Lecturer in Psychiatric Social Work is indeed a fraud on the power of the 1st respondent. A premier institution like the 1st respondent should not have indulged in such a conduct. It should not have allowed itself to yield to safeguard the interest of one individual and should not have evinced so much interest to appoint the 2nd respondent. One would have appreciated this undue interest being shown had thecandidate been a meritorious individual. He is not so as well. Within six months of the earlier adjudging him as suitable by the 1st respondent for the post of the Lecturer, the expert committee who interviewed him specifically for that post found that he is not fit to be appointed as a Lecturer, the identical post for which he was appointed as per Annexure-C. In a similar exercise indulged by another Institution, the Supreme Court stated as under:

'6. It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact'.

(See District Collector and Chairman, Vizianagayan Social Welfare Residential School Society, Vizianagaram and Another v M. Tripura Sundari Devi).

The facts in the present case is parallel to that case. The selection of the 2nd respondent in pursuance to Annexure-B, to borrow the expression of the Supreme Court, is clearly a fraud practised by the 1st respondent on the public. That selection alone earned the 2nd respondent Annexure-A appointment. And as such, Annexure-A is born out of a fraud. The end certainly should not justify the means. Annexure-A is therefore clearly not sustainable.

14. Now, the case of the 1st respondent that for paucity of funds Annexure-E selection was abandoned. At the same breath the 1st respondent states that the 2nd respondent continued against the advertised post. These are really inconsistent pleas and amounts to contradictions. Obviously when the 1st respondent has gone totally and unjustifiably out of the way to accommodate the 2nd respondent as a Lecturer even when it is demonstrated that he is not suitable for the post, necessarily one is inclined to think that the 1st respondent had treated it as its mission to 'plant' him in the Institution under some pretext; that alone can be the only explanation to support the appointment of the 2nd respondent as an Assistant Professor as per Annexure-A.

15. The case even, if it does not help the petitioner directly, is an indicator how favouritism and undue preference can spoil the fair image of a prestigious institution like the 1st respondent. The 1st respondent should conduct a soul searching and identify as to who is responsible for this fiasco. It is this Institution which has to deal with psychologicaldisorder of innumerable people who approach them. But one wonders what would happen if the very Institution itself is straining under certain undisclosed 'psychological' disorder in the matter of recruitment to its own faculty.

16. An argument was strenuously urged that as the petitioner is not qualified, she has no locus standi to maintain the writ petition. The observation of the Supreme Court in case of District Collector and Chairman, quoted above is the answer to this contention. That apart, this Institution exist for the public and not to serve the interest of either the petitioner or the 2nd respondent. The public is hence aggrieved if such inappropriate recruitment is made. It is they who have to approach such physicians working in the Institution, if they fall ill. They are hence entitled to be protected from such unqualified persons messing up with their life and health.

17. For the reasons stated above, as the 2nd respondent did not have a valid appointment to fall back upon on the expiry of Annexure-C appointment as the clause introduced by Annexure-D is not applicable to the 2nd respondent and as Annexure-A appointment having not been admittedly made after inviting application and due selection, the same is liable to be quashed. I do so.

18. Now, admittedly there had been a post of Assistant Professor in Psychiatric Social Work advertised in Annexure-E which post was being held by the 2nd respondent till today. When Annexure-A appointment is quashed that post falls vacant and the 1st respondent can fill up the said post. The 1st respondent shall conduct a selection to that post reckoning the qualifications of the candidates as it stood on the date of Annexure-E advertisement. The experience acquired by the 2nd respondent by virtue of Annexure-A appointment shall not be taken into account.

19. The lengthy defence raised by the 1st respondent can be epitomized by quoting what Scrutton L., J. said in Grears Limited v Pearman and Corder Limited.

'Honest belief in an unfounded claim is not malice; but the nature of the unfounded claim may be evidence that there was not an honest belief in it. It may be so unfounded that the particular fact that it is put forward may evidence that it is not honestly believed'.

20. The writ petition has to be allowed. I quash Annexure-A. The petitioner is entitled to the costs from respondents 1 and 2. Advocates fee Rs. 2,000/-.

21. Before parting with this case, this Court wishes to record its deep anguish and sorrow regarding how certain quarters in a premier Institution like the 1st respondent brings about discredit to the fair image of the Institution built up over these years. One has to remember that it isto the 1st respondent, one has to turn to, when afflicted with illness. And if such an Institution itself is labelled with a conduct as illustrated in this case, one can only turn in despair and think ruefully as to wherewe are heading to.