Dr. Satyawati Rana Vs. Dr. A.P. Singh Narang and ors. - Court Judgment

H.S. Bedi, J.

1. The Letters Patent Appeal arise out of judgment of the learned Single Judge dated 10.1.1990. The Post Graduate Institute of Medical Education and Research, Chandigarh (hereinafter called 'the PGI') issued an advertisement No. 2/88, Annexure P-3, calling for applications to fill in various posts including one post of Assistant Professor in Clinical Biochemistry (Super-speciality of Gastroenterology). The appellant applied for the said post. She along with other candidates including respondent No. 1-Dr. A.P. Singh Narang appeared before the Selection Committee for the interview on 24.9.1988 and was selected and duly appointed on 14.10.1988 vide Annexure P-4. This selection was challenged by respondent No. 1 -Dr. A.P. Singh Narang on several grounds these being primarily;

1) that the appellant was not qualified or eligible to hold the post;

2) that the selection had been made due to the influence exercised by Professor Saroj Mehta who was one of the Internal Experts and had assisted the Selection Committee in its deliberation.

2. The learned Single Judge accepted both the contentions and by an elaborate process of reasoning observed that the appellant had only a M.Sc. Degree in inorganic Chemistry and a Ph.D in Neurology from the PG.I which had no concern with the subject of Biochemistry much less Clinical Biochemistry and as such, was not eligible for the post in question. The learned Single Judge also observed that Professor Saroj Mehta-respondent No. 4 who was a Member of the Selection Committee in the capacity of an Internal Expert and, therefore, had ample opportunity for influencing other members of the Selection Committee. The writ petition was accordingly allowed on 10.1.1990. Hence, the Letters Patent Appeal.

3. When this matter came up for motion hearing, it was dismissed in limine by the Division Bench on 16.1.1990. The appellant thereafter approached the Hon'bie Supreme Court in Civil Appeal No. 236 of 1990 which was allowed by the Hon'ble Supreme Court vide order dated April 1, 1997 and the matter was remanded to this Court for decision on merits. The Hon'ble Supreme Court also clarified that the stay granted by it would continue till the disposal of the appeal. The net result is that as on today, the appellant continues to be in service and we are now informed that she had been promoted first as an Assistant Professor and thereafter as a Professor.

4. On the last date of hearing, it was pointed out to Mr. Tiwari that in the light of the fact that the appellant had suffered two promotions, it would be appropriate that respondent-Dr. A.P. Singh Narang who is also working as a Professor in the Dayanand Medical College, Ludhiana should be asked, if he was serious in pursuing this appeal. Mr. R.K. Sharma counsel appearing for respondent-Dr.A.P. Singh Narang informs us that he still wants to contest the matter. We have accordingly heard the learned Counsel for the parties at length.

5. Mr. Tiwari has argued that the learned Single Judge had proceeded as if he was an expert on the subject in question and had given a decision on that basis. He has also argued that as per the judgment of the Hon'bie Supreme Court in case of Dr. M.C. Gupta and Ors. v. Dr. Arun Kumar Gupta and Ors. : [1979]2SCR853 and Dalpat Abasaheb Soluke and Ors. v. Dr. B.S Mahajan and Ors. : (1990)IILLJ470SC , this Court was precluded from, assessing the qualifications of the candidates to evaluate as to whether they fulfilled the qualifications prescribed as it was not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. It has also been argued that the appellant had in the meanwhile secured two promotions first as Assistant Professor and Anr. as Professor which had also not been challenged by respondent-Dr. A.P. Singh Narang either by filing a fresh writ petition or amending the present one, no, relief could flow to the respondent. For this assertion, the learned Counsel for the appellant placed reliance on Piare Lal v. Union of India and Ors. : AIR1975SC650 and J. Ranga Swamy v. Govt. of Andhra Pradesh and Ors. 4 : (1990)ILLJ526SC .

6. Mr. Sharma, the then counsel for the respondent has, however pointed out that the learned Single Judge had observed that the appellant had not studied the subject of Biochemistry and as Professor Saroj Mehta was a member of the Selection Committee and the fact that the appellant herself had given her as a reference, clearly showed the closeness between them and as such no infirmity could be spelt out in the judgment of the learned Single Judge.

7. We have heard learned Counsel for the parties and perused the record very carefully.

8. At the very outset, it has to be remembered that the PGI, Chandigarh is an institution of national importance and is providing medical education and medical aid of a very high standard. A few facts must be given in view of the stand taken by the PGI in respect of the qualifications of the appellant. In para 9 of the reply, the stand of the PGI is that the appellant's qualification was considered by the scrutiny committee which consisted of very highly qualified doctors and after scrutiny, it opined that the appellant fulfilled the eligibility conditions for the post of Assistant Professor, Clinical Biochemistry and she had only thereafter been called for interview. It has also been highlighted that the Selection Committee consisted of three senior experts i.e. Dr. M.S. Valisthan, Chairman, Dr. P. Bahadur, Member, Dr. Ajmer Singh, Member and Professor P.L. Wahi as a Member Secretary, of whom the first three were outsiders and not in any way connected with the PGI. The Selection Committee was also assisted by three experts. Dr. T.A.V. Subramaniam, External Expert, Professor R. Nath, Internal Expert and Dr. (Mrs.) S. Mehta, Internal Expert and it was this Selection Committee which had selected the appellant on the premise that she was not only the best but also duly qualified for the post. To our mind, the finding of the learned Single Judge to the contrary cannot, thus, be supported. In Dr. M.C. Gupta's case (supra), it was observed by the Hon'ble Supreme Court as under:-

7. Before the rival comments are probed and analysed, it would be necessary to keep in view the twilight zone of Court's interference in appointment to posts requiring technical experience made consequent upon selection by Public Service Commission, aided by experts in the field, within the framework of Regulations framed by the Medical Council of India under Section 33 of the Indian Medical Council Act, 1956, and approved by the Government of India on June 5, 1971. When selection is made by the Commission aided and advised by experts having technical experience and high academic qualification in the specialist field, probing teaching/research experience in technical subjects the Courts should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the Courts generally can be. Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it in making the selection and recommending the selectees for appointment, the Court in exercise of extraordinary jurisdiction to enforce rule of law, may interfere in a writ petition under Article 226. Even then the Court, while enforcing the rule of law, should give due weight to the opinions expressed by the experts and also show due regard to its recommendations on which the State Government acted. If the recommendations made by the body of experts, keeping in view the relevant rules and regulations, manifest due consideration of all the relevant factors, the Court should be very slow to interfere with such recommendations (see: University of Mysore v. C.D. Gonida Rao). In a more comparable situation in State of Bihar v. Dr. Asis Kumar Mukherjee. this Court observed as under: (S.C.C. P. 611, Para 21)

Shri Jagdish Swaroop rightly stressed that once the right to appoint belonged to Government the Court could not usurp it merely because it would have chosen a different person as better qualified or given a finer gloss or different construction to the regulation on the score of a set formula that relevant circumstances had been excluded, irrelevant factors had influenced and such like grounds familiarly invented by parties to invoke the extraordinary jurisdiction under Article 226. True, no speaking order need be made while appointing a government servant. Speaking in plaintitudinous terms these propositions may deserve serious reflection. The Administration should not be thwarted in the usual course of making appointments because somehow it displeases judicial relish or the Court does not agree with its estimate of the relative worth of the candidates. Is there violation of a fundamental right, illegality or akin error of law which vitiates the appointment.

8. With these blurred contours of peripheri of jurisdiction under Article 226 to interfere with selections made by an independent body like Public Service Commission not attributed any mala fides, assisted by four experts in the field who presumably knew what constituted teaching/research experience, what institutions are treated prestigious enough in which teaching/research experience would be treated valuable, we may examine the rival contentions.

Likewise, in Dalpat Asasaheb Solunke's case (supra), it was observed in para No. 12 by the Hon'ble Supreme Court as under:

It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasis that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction.

Likewise in J. Ranga Swamy's case (supra), it was observed by the Hon'ble Supreme Court as under:-

6. So far as the second plea is concerned, admittedly, the petitioner does not have, while the respondent has a doctorate in nuclear physics. The plea of the petitioner is that, for efficient discharge of the duties of the post in question, the diploma in radiological physics (as applied in Medicine) from the Bhabha Atomic Research Centre (BARC) held by him is more relevant than doctorate in nuclear physics. It is submitted that in all corresponding posts elsewhere, a diploma in radiological physics is insisted upon and that, even in the State of Andhra Pradesh, all other physicists working in the line, except the respondent, have the diploma of the BARC. It is not for the Court to consider the relevance of qualifications prescribed for various posts. The post in question is that of a Professor and the prescription of a doctorate as necessary qualification therefore is nothing unusual. Petitioner also stated before us that to the best of his knowledge, there is no doctorate course anywhere in India in radiological physics. That is perhaps why a doctorate in nuclear physics has been prescribed. There is nothing prima facie preposterous about this requirements. It is not for us to assess the comparative merits of such a doctorate and the BARC diploma held by the petitioner and decide or direct what should be the qualifications to be prescribed for the post in question. It will be open to the petitioner, if so advised, to move the college, university, Government, Indian Medical Council or other appropriate authorities for a review of the prescribed qualifications and we hope that if a doctorate in nuclear physics is so absolutely irrelevant for the post in question as is sought to be made out by the petitioner, the authorities concerned will take expeditious steps to revise the necessary qualifications needed for the post appropriately. But, on the qualifications as they stand today, the petitioner is not eligible to the post and cannot legitimately complain against his non-section.

9. In view of the above, we are of the opinion that it would be dangerous for the Court to embark upon a discussion as to whether a technical qualification held by a candidate made him eligible for a particular technical post. Clearly the Court does not have the necessary expertise or the knowledge to give a decision in such a mater and must accordingly stay its hands and leave to it those best qualified.

10. We also observe that the finding with regard to the participation and the alleged influence of Professor Saroj Mehta appears to be rather far fetched. Admittedly, at one stage, she was a teacher of the appellant and the appellant had given her reference in her application. We, however, find that Professor Mehta was not a Member of the Selection Committee and was only one of the experts who had been chosen to assist the Selection Committee in the evaluation of the inter se merit of candidates. It has been argued by Mr. Sharma that as the appellant had given Dr. Saroj Mehta, as one of the references, it should be held that the relations between them were close. To our mind, even that being so, the undue influence could not have been exercised by her. It should also be borne in mind that on the day when the applications were filed, it was not known that Professor Saroj Mehta would be one of the Internal Experts. We also cannot expect that the members of the Selection Committee, three eminent experts in their fields would be prone to any undue influence. In Dalpat Abasaheb Solunke's case (supra) a similar argument had been repelled by observing (in paragraph 13) as under:-

The fourth and the last ground given by the High Court to set aside the appointment of the appellant in C.A. No. 3507 of 1989 is that respondents 'No. 4 and 5 to the writ petition were guides of the appellant when he was doing his M.Sc. by Research. We are unable to understand as to how the fact that they were his guides when the appellant was doing his M.Sc. would influence their decision in selecting him, or vitiate the selection made. They must have been guides to many who had appeared for the interview. As senior teachers in the faculty in question, it is one of their duties to guide the students. In fact, very often the experts on the Selection Committees have to be drawn from the teaching faculty and most of them have to interview candidates who were at one or the-other time their students. That cannot disqualify them from being the members of the Selection Committees. In fact, as stated by respondent No. 4 in his affidavit before the High Court, even respondent No. 2, the aggrieved candidate was also his student. Curiously through the High Court has discarded the said fact by observing that in point of time, the appellant was closer to respondent 4 as a student since the appellant was his student at a later date, it is not necessary to comment further on this reasoning.

11. The finding of the learned Single Judge with regard to the influence exercised by Professor Saroj Mehta must also be repelled.

12. We also observe that the writ petition was for a quo warranto and that the petitioner-respondent Dr. A.P. Singh Narang had sought no relief for himself. In this situation, the fact that the appellant has, in the meanwhile, got two promotions which have not been challenged by the respondent either by way of another writ petition or by amending the present one, forecloses the options of the respondent. In Piare Lal's case (supra) while dealing with almost a similar situation, the Hon'ble Supreme Court held as under:-

7. When the appeal came up for hearing before us, the State of Punjab filed an affidavit made by H.S. Sekhon, Assistant Inspector General of Police on 2nd January, 1975. The Note of the Chief Secretary to the Government of Punjab, to which we. have referred above, was annexed as Annexure RA to this affidavit and it also carried the two orders dated 28th October, 1966 as Annexure RB and RC. These two orders dated 28th October, 1966 clearly showed that the orders of promotion impugned in the petition did not exist any more and the petition had become anfractuous and futile. Faced with this situation, the appellant invited us to consider the validity of the two orders dated 28th October, 1966 and contended that they were invalid, since they were based on selections made in accordance with the new principle evolved by the Established Board, which principle was different from the one really applicable in the present case. The appellant urged that by reason of Rule 2(b) of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960, the selections to the Selection Grade posts as also to the posts of Deputy Inspector General of Police were regulated by the principle contained in the circular of the State Government dated 4th/17th September, 1956 as clarified by the subsequent circulars of the State Government dated 28th June, 1961 and 8th/11th September, 1961, Annexures RD, RE and RF to the affidavit of H.S. Sekhon, and since this principle had not been followed by the Establishment Board and the President in making the two orders dated 28th October. 1966, these two orders were invalid. It was also contended on behalf of the appellant that he was entitled as of right to be promoted to the Selection Grade post as also to the post of Deputy Inspector General of Police merely on the basis of seniority and the two orders dated 28th October, 1966 promoting officers junior to him to these posts, therefore, amounted to withholding of promotion by way of penalty and that attracted the provisions of the All India Services (Discipline and Appeal) Rules, 1955. We do not think we can entertain against the validity of the two orders dated 28th October, 1966, since there is no challenge to these two orders in the petition. The appellant could have veil well amended the petition and challenged the validity of the two orders dated 28th October, 1966 before the petition was heard and disposed of by the High Court, but the appellant failed to do so. The appellant did not care to apply for amendment of the petition even after the appeal was preferred in this Court and though the appeal remained pending in this Court for about seven years, no application for amendment to the petition was made on behalf of the appellant. It was only after the hearing of the appeal was concluded and when it was pointed out by us that the entire basis of the petition was knocked out by the making of the two orders dated 28th October, 1966 and no relief could be granted to the appellant unless those two orders were successfully impugned, that the appellant asked for time to move an application for amendment of the petition so as to include a challenge to the validity of those two orders. Obviously, we could not grant time for moving such an application for amendment at the stage at which it was sought to be moved. The two orders dated 28th October, 1966 could not be allowed to be challenged by an amendment of the petition more than eight years after the date when they were made. It is not possible to believe that the appellant was not aware of the making of these two orders and that he came to know them for the first time when the affidavit dated 2nd January, 1975 was filed by H.S. Sekhon on behalf of the State Government. The appellant could have amended the petition earlier, at any rate during the long period of seven years when the appeal was pending in this Court, but the appellant was either lax or negligent. We cannot now, after the lapse of such a long time, and particularly after the hearing of the appeal is concluded, allow an amendment to the petition. U must follow a fortiori that, in the absence of challenge in the petition.

We cannot examine the validity of the two orders dated 28th October. 1966 and strike them down. We must, therefore, hold the petition to have become infructuous by reason of the making of the two orders dated 28th October, 1966 and confirm the dismissal of the petition by the High Court, though for different reasons.

13. As already mentioned at the beginning of the judgment, Mr. Sharma, the learned Counsel for the respondent, had sought instructions from his client as to whether he wished to proceed with the matter and has informed us that Dr. A.P. Singh Narang was serious in pursuing this case.

14. For the reasons recorded above, we are of the opinion that the judgment of the learned Single Judge cannot be sustained. It is accordingly set aside.

The appeal is allowed with no order as to costs.