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TMI Blog1983 (12) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... rity in Art. 12 of the Constitution ? Re: W.P. No: 587/75 : Petitioner No. 1 was Professor of Animal Pathology, petitioner No. 2 was Professor of Animal Genetics and petitioner No. 3 was Professor of Veterinary Parasitology, all attached to IVRI. Six posts of Professors one each in Animal Pathology, Animal Genetics, Veterinary Parasitology, Animal Nutrition, Bacteriology and Physiology were created on the introduction of the post-graduate wing in IVRI in 1958. At the relevant time the post of Professor carried the scale of ₹ 700- 1250. Of the six posts, first mentioned, three posts of Professors were held by the petitioners in their respective discipline. On the introduction of the scales recommended by the University Grants Commission, the pay scale attached to the post of Professor in IVRI was revised to ₹ 1100-1600. After the upward revision during the year 1970-71, the cadre of Professors in IVRI was expanded by creating six new post of Professors in various disciplines. Surprisingly, act of the petitioners, who was already holding post of Professor, was not given the benefit of the upgraded scale attached to the post of Professor while on the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terinary Parasitology in the revised scale of ₹ 1100- 1600. These were the posts already held by petitioners. The advertisement set out the essential and desirable qualifications for each post. Petitioners contend that the duties pertaining to the post of Professor in the upgraded scale are the same as performed by the petitioners and that this action of inviting fresh applications for post already held by the petitioners disclosed a cover attempt to remove the petitioners from the posts held by them for years. Petitioners further contend that only three posts held by the petitioners have been advertised inviting the applications for fresh recruitment while there were others who were holding posts of Professors in the pre-revised scale and to whom benefit of automatic upward revision was granted and this disclosed not only the bias of the ICAR but also subjected the petitioners to gross discrimination. Serious allegations of bias and malafide have been made against respondent No. 6, the Director of IVRI, and Director General of ICAR, which need not be set out here. It may, however, be stated that though the various functionaries working in IVRI and ICAR are highly qualified p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision which have to be reconciled, the petition should be heard by a larger Bench. Pursuant to this direction, the matter came up before a Bench of five Judges. The larger Bench formulated four questions for its considerations : 1. Do the petitioners have legal right to challenge the appointment of respondent 6 ? 2. Has the Director-General of the ICAR acted in contravention of any legal obligation in making the appointment of respondent 6 ? 3. Has the said appointment vitiated by the mala fides of Dr. Swaminathan and/or of Dr. Naik ? 4. Was it bad because of the want of qualifications of Dr. Mehta or non-compliance with the prescribed procedure in making it ? The court answered the first question against the petitioner holding that ICAR is a society registered under the Societies Registration Act and it is neither a State nor other authority within contemplation of Art. 12 of the Constitution. The court further held that the relation between the petitioner and ICAR is governed by a contract and the rules and the bye-laws of the Society and ICAR was free to fill in the post of Senior Biochemist in any manner it liked. The court observed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing heard in this group. Re: C.A. No. 1043/81: Appellant Dr. Om Prakash Khauduri filed Writ Petition No. 553 of 1980 in the High Court of Delhi alleging that he was selected for the post of Senior Computer with Indian Agricultural Statistics Research Institutes, and affiliate of ICAR. ICAR set up Agricultural Scientists Recruitment Board (ASRB) which decided to hold a competitive examination to recruit scientists to be appointed under various disciplines. ICAR framed rules setting out the terms and conditions for admission to the competitive examination. Appellant applied for admission to the competitive examination in Agricultural Statistics discipline. The written test was held from 1st to 4th February, 1978. The Board incharge of the selection and appointment on the comparative merits as evidence by the performance in the written examination selected 20 candidates including the appellant as having obtained the prescribed qualifying marks for the purpose of viva voce examination which was held on April 10th and 11th, 1978. After the viva voce test, 13 candidates were declared as successful and were offered appointment as scientists in the discipline Agricul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Societies Registration Act, was neither a State nor other authority within the contemplation of Art. 12 and therefore, the writ petition was held not to be maintainable against it. And even though this matter had become part-heard in 1980 and the hearing was resumed in 1983 before a different Bench, the vigour of the sustained attack was not the least dimmed even though the law expanding the width and ambit of the expression State and other authority in Art. 12 had taken strides culminating in Ajay Hasia etc. v. Khalid Mujib Sehravardi ors. etc.(2) And Mr. Lokur continued his submission with unabated fury even though the learned Solicitor General Shri K. Parasharan appearing for the Union of India fairly conceded that in view of the circumstances disclosed in the case and the trend of the decisions, it is not possible to contend that ICAR and its affiliates IVRI and IARI would not be other authority being instrumentalities of the State and against which writ jurisdiction could be invoked. A very brief resume of the history of ICAR commencing from its initial set up and its development into its present position would show that as a matter of form, it is a society regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be department of the Government of India. In July, 1929, ICAR was registered as a Society with its office in the Secretariat as an attached office of the Secretariat. By the Resolution dated August 4, 1930, Government of India directed that for reasons of administrative convenience the Governor-General in Council has now, decided that the Imperial Council of Agricultural Research Department, as the Secretariat of the Council will henceforth be designated, should be a regular department of the Government of India Secretariat under the Hon ble Member incharge of the Department of Education, Health and Lands . A note was submitted on December 29, 1937 to the then Viceroy concerning the status and position of the ICAR as a Department of the Government in which it was recommended that ICAR should not only be maintained as a distinct entity independent of the Government of India and with a view to achieving this position, the office of the ICAR should not in future be a Department of the Government of India but should be an attached office. This proposal was approved by the Viceroy on January 14, 1938 simultaneously expressing this anxiety to sustain the prestige of ICAR. The nex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as transferred to ICAR simultaneously placing the Government staff of the institutes at the disposal of ICAR as on foreign service. This is evidenced by a communication dated April 19, 1966 addressed by the Ministry of Agricultural, Food, Community, Development and Cooperation to the Directors of central Research Institutes. An option was given to the members of the staff of the Institutes, administrative control of which was transferred to ICAR and the date for exercising the option was extended by the communication dated November 9, 1966. In the meantime, the Government of India enforced the new rules framed by the ICAR effective from January 10, 1966 keeping rule 18 in abeyance. With the change in the status of the ICAR, Department of Agricultural Research and Education ( DARE for short) was set up in the Ministry of Agriculture and it came into existence on December 15, 1973. This Department was set up with a view to providing necessary Government linkage with ICAR. The major function of the Department was to look after all aspects of agricultural research and eduction involving coordination between Central and State agencies; to attend to all matters relating to the ICAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered under the Societies Registration Act. It was wholly financed by the Government of India. Its budget was voted upon as part of the expenses incurred in the Ministry of Agriculture. Even when its status underwent a change, it was declared as an attached office of the Government of India. The control of the Government of India permeates through all its activities and it is the body to which the Government of India transferred Research Institutes set up by it. In order to make it financially viable, a cess was levied meaning thereby that the taxation power of the State was invoked, and the proceeds of the tax were to be handed over to ICAR for its use. At no stage, the control of the Government of India ever flinched and since its inception it was setup to carry out the recommendations of the Royal Commission on Agriculture. In our opinion, this by itself is sufficient to make it an instrumentality of the State. It was however urged that The Council of Scientific and Industrial Research (CSIR for short) a society registered under the Societies Registration Act and having an identical set up as well as constitution, was held not to be an instrumentality of the State or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... society and wholly financed by the Government and the taxing power of the State was invoked to make it financially viable and to which independent research institutes set up by the Government were transferred. None of these features was present in the case of CSIR and therefore, the decision in Sabhajit Tewary s case would render no assistance and would be clearly distinguishable. The ratio, if any, of the decision in Sabhajit Tewary s case was examined by a Constitution Bench of this Court in Ajay Hasia s case and it was held that that decision is not an authority for the proposition that a society registered under the Societies Registration Act, 1860 can never be regarded as an authority within the meaning of Art. 12. The Court further held that having regard to the various features enumerated in the judgment in Sabhajit Tewary s case, the conclusion was reached that the CSIR was not an agency of the Government, but the Court did not rest its conclusion on the sole ground that CSIR was a Society registered under the Societies Registration Act, 1860, and on the contrary proceeded to consider various other features of the Council for arriving at the conclusion that it was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iety can be disposed of in any manner without the approval of both the Governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is in charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominees of the State and the Central Governments. It will thus be seen that that State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the Society and it would not be incorrect to say that the Society is merely a projection of the State and the Central Governments and to use the words of Ray, C.J. in Sukhdev Singh s case (supra), the voice is that of the State and the Central Governments and the hands are also of the State and the Central Governments. We must, therefore, hold that the Society is an instrumentalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Annual Report of the proceedings of the Society and of all work undertaken during the year shall be prepared by the Governing Body for the information of the Government of India and the members of the Society, and the report and the audited accounts of the Society along with the auditor s report thereon shall be placed before the Society at the Annual General Meeting and also on the table of the Houses of Parliament. Rule 18 provides that the appointment to the various posts under the Society shall be made in accordance with the Recruitment Rules framed for the purpose by the Governing Body with the prior approval of the Government of India but prior thereto it was by the Union Public Service Commission. The administrative and the financial control of the Government is all pervasive. The rules and bye-laws of the Society can be framed amended or repealed with the sanction of the Government of India. The case before us is much stronger than the one considered by this Court in the case of Ajay Hasia and therefore, the conclusion is inescapable that the Society is an instrumentality or agency of the Central Government and therefore, it is other authority within the meaning of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essitates a scientist applying for posts and being interviewed by selection committees throughout his working career because the system inevitably provides frequent occasions for disappointment leading to frustration. Two decades thereafter we are constrained to note that the things have not improved at all. The ICAR and the Institutes seem to be so backward looking in their approach to the members of the staff that as late as in 1983 considerable time of this Court was frankly wasted in disposing of the preliminary objection on behalf of the ICAR that it is not amenable to this Court s writ jurisdiction which would imply that they have skeletons to hide and shun their exposure to the Court s examination of the internal affairs. To continue the narrative, a committee was appointed under the Chairmanship of Shri P.B. Gajendragadkar, retired Chief Justice of India and Vice-Chancellor, University of Bombay and at the relevant time Chairman, Law Commission with wide terms of reference inter alia to enquire into the recruitment policies of ICAR and to review the recruitment and personnel policies of ICAR. Institutes and Centres working under it and to suggest measures for their improvem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Committee. Re: W.P. No. 58/75 : In this writ petition, the substantial grievance is that even though the three petitioners were respectively holding the post of Professor in Animal Pathology, Animal Genetics and Veterinary Parasitology from 1963, 1970 and 1970 respectively, when the pay-scale for the post of Professor on the recommendation of the University Grants Commission underwent an upward revision to ₹ 1100-1600, the ICAR instead of straightway granting the scale to the petitioners, the holders of the posts of Professor, proceeded to issue an advertisement on May 21, 1974 inviting fresh applications for the post of Professor in the three subjects in which the petitioners were already holding the post of Professor and simultaneously appointed some others in different subjects and disciplines as Professors and gave them the revised scale while the petitioners, were left to languish in the old scale. According to the petitioners, apart from gross discrimination in the matter of equal pay for equal work the direct consequence of this unfair and arbitrary action of the third respondent was the adverse affectation in the seniority in the cadre of Professo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the higher scales, if they are otherwise suitable. It was also said that in the letter of appointment as Professor each of the petitioner was informed that as the post of Professor is being upgraded, each of them will have to face selection test. Letter of appointment dated March 25, 1970 in respect of petitioner No. 2 though relied upon was not on the record but when produced in the course of hearing with an affidavit, it belied the statement. There is nothing in the letter of appointment of each of the petitioners that then the revised scale for the post of Professor will be introduced, the incumbent of the post will have to face a fresh selection. It is not clarified whether the three posts of Professor in Veterinary Bacteriology, Animal nutrition and Animal Genetics in the pre-revised scale were already filled in and whether the holders of the posts got the revised scale without any fuss of fresh selection on the part of the respondents. The counter affidavit on behalf of respondents Nos. 1,2,3,4,5 and 11 is conspicuously silent on this point. However, it is contended that the qualifications for post of Professor while sanctioning the revised scale was altered in as much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the newly created post in the cadre of Professor is not the same as the then existing post and that there was marginal revision in the qualifications for not the posts of Professor in the revised scale and that petitioners were not discriminated because they were given an opportunity to contest for the posts in the revised scale. The justification is too flimsy to merit any serious consideration more so in view of the fact that it is difficult to envisage a situation in such institutes, undertaking advance research in Agriculture and Animal Husbandry where persons holding Doctorate qualification and enjoying the status of the post of Professor would be governed by two different scales even though the duties, responsibilities and functions in various sister disciplines are identical. In such a situation Art. 39(d), trust assist us in reaching a fair and just conclusion. Elaborating the underlying intendment of Art. 39(d), Chinnappa Reddy, J. in Randhir Singh v. Union of India Ors. observed that construing Arts. 14 and 16 in the light of the Preamble and Art. 39(d), the Court was of the view that the principle equal pay for equal work is deducible from those Articles and may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affecting the position of the petitioners and the petitioners need not expose themselves to the vagaries of a fresh selection. It is therefore not necessary for us to cancel the advertisement for the reasons herein indicated. This would dispose of W.P. No. 587 of 1975. Re: R.P, No.4 of 1977 in S.L. P. No. 2339/75 : Dr. Y.P. Gupta filed Writ Petition No. 276 of 1972 in the High Court of Delhi. In this writ petition, he primarily raised two contentions:(i) that the selection of respondent No. 6 for the post of Senior Bio-chemist was illegal as he did not possess essential qualifications, and (ii) the removal of the petitioner from the membership of the Postgraduate Faculty was unjust and invalid. It was alleged that in December, 1970, ICAR advertised a post of Senior Bio-chemist in IARI in the scale of ₹ 1100-1400. The essential qualifications were set out in the advertisement as under : (i) Doctorate in Biochemistry or Organic Chemistry or agricultural Chemistry. (ii) 10 years research experience in the field of Nutrition with particular reference to quantity and quality of protein in food grains as evidenced by published work. (iii) Ability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upta was not interested in continuing as a member of the Faculty and hence the Council regret to utilise his service as a member of the Faculty to the post-graduate school any more. Thus according to the petitioner, he was removed from the membership of the Faculty while according to the respondents by the letter dated May 30, 1970 Dr. Gupta submitted his resignation which was accepted by the Academic Council with regret. The High Court rejected the petition primarily on the ground that no writ petition lies against IARI, a ground no more available to the petitioner. On the merits, the High Court held that Dr. Y.P. Gupta has failed to substantiate the allegations of mala fides made against respondent No. 4- Dr. M.S. Swaminathan and respondent No. 5 Dr. M.S. Naik. The High Court further held that the Selection Committee had the power to relax the essential qualifications and the very fact that respondent No. 6 Dr. S.L. Mehta was appointed on the recommendation of the Selection Committee it must have been done by necessary implication after relaxing the essential qualification and therefore, the appointment of respondent No. 6-Dr. S.L. Mehta was valid and unquestionable. With ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution, justice demands that the Court must examine the contentions of Dr. Gupta on merits. We accordingly overrule the preliminary objection raised on behalf of respondents and proceed to examine the contentions on merits by allowing the review petition No. 4 of 1977 and grant special leave to appeal to the petitioner. Both the contentions may be separately examined. The first contention is that respondent No. 6 Dr. S.L. Mehta who was selected by the Selection Committee for the post of Senior Bio-chemist after the bizarre exercise undertaken to find a suitable person to fill in the post on the earlier occasion, did not fulfil one of the essential qualifications for the post. It was urged that in order to help respondent No. 6 to get selected essential qualification was doctored to suit his requirements and respondent No. 5 was nominated on the second Selection Committee. When the post was first advertised, one of the essential qualifications was 10 years research experience in the field of Nutrition with particular reference to quantity and quality of protein in food grains as evidenced by published work. It is not in dispute that Dr. Gupta, the present petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the proceedings were vitiated on account of the bias of Dr. M.S. Naik and that the Committee failed to interview Dr. T.S. Raman and his case went by default not on account of his fault but on account of inefficiency and inaction on the part of the administration responsible for intimating to Dr. Raman the date of interview. At the outset we must notice one development which renders a detailed examination of the contentions raised by Dr. Gupta unnecessary though we cannot refrain from expressing our distress about the recruitment method adopted by the ICAR and its affiliates. This exercise, we are undertaking to satisfy ourselves whether after the unravelling of despicable state of affairs in the internal administration of ICAR and its affiliates by Gajendragadkar Committee, has any improvement become noticeable ? Dr. Gupta challenged the selection and appointment of respondent No. 6 as Senior Bio-chemist. The post of Senior Bio-chemist has since been abolished. Therefore, setting aside the selection of respondent No. 6 for the post of Senior Bio-chemist is only of academic interest. However one aspect which we cannot overlook is that by this process of selection se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al qualification pertaining to experience because the post was under the project on the protein quality of millets, sorghum, wheat and other cereals concerned with studies on the nutritional quality of food grains whereas Dr. Mehta has never done any work nor published any literature in the line of nutrition nor was he ever basically trained in this line. In the counter affidavit filed on behalf of respondent Nos. 2 and 4 that is Director General and Secretary to the Government of India, ICAR and Director General of ICAR, this averment was neither questioned nor controverted nor denied. Further the High Court upheld the selection and appointment of respondent No. 6 Dr. Mehta holding that as the Selection Committee had power to relax the essential qualification, the appointment of Dr. Mehta was made after relaxing the essential qualification. We find it difficult to appreciate that the High Court should uphold an appointment of a person, to suit whose requirement, the essential qualification was amplified by providing an irrelevant additional amplification and yet who failed to qualify for the same by resorting to the power of relaxation. And we are not satisfied that the second Sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consisted of experts and they were highly qualified persons who would be able to evaluate and assess the relative merits of each of the candidate before it and the Court is least competent to do so and therefore it would be unwise to substitute experts decision by Courts decision. In this connection, reliance was placed on Dr. M.C. Gupta Ors., v. Dr. Arun Kumar Gupta Ors.(1) in which this Court held as under: When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications 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 the court in excerise of extraordinary jurisdiction to enforce rule of law, may interfere in a writ petition under Art. 226. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta and he is entitled to it. The second grievance of Dr. Gupta is that he was illegally removed from the membership of the Post-graduate Faculty by the Academic Council. Few relevant facts in this connection are that Dr. Gupta felt that he was unjustly treated by his superiors by not allocating students for Ph.D. to him and by not facilitating post-graduate teaching. There is a long drawn-out correspondence in this behalf which we consider unnecessary to refer to save and except the letter dated May 30, 1970 which has been treated by the Academic Council as a letter of resignation of Dr. Gupta from the membership of the Faculty. By this letter petitioner Dr. Gupta informed the Academic Council that even though he has been repeatedly assured that his grievance would be thoroughly examined and full justice would be done to him for the discrimination and victimisation to which he has been subjected in the matter of allotment of students of 1968 and 1969 batches, nothing has been done in this behalf. He further states that he has been all along patiently waiting for the redressal of his grievance, yet justice has not been done to him. He then states as under: As s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se certain equipments which are available in the Division or in the Institute. For example, the equipments available in the Division of Biochemistry of IARI are not shared by all the colleagues of the Division. The Nuclear Research Laboratory has several equipments which scientists of other Divisions normally cannot use. After listing these complaints, the Committee gave its considered opinion as under: 11.2 We feel that most of these complaints are genuine and they should be remedied. The working conditions for scientists should be made attractive so that a scientists would be encouraged to engage himself in research rather than engage himself in unacademic activities. So the conditions in a Division should be set right first. (underlining ours) The Committee proceeded to make numerous recommendations to ameliorate the situation. In this context we would also like to refer to paragraph 13 at page 152 of the Report which reads as under: As more instances of allegations of unscientific attitudes, behaviour and practices in IARI, we cite the following. These come from the submissions made by three scientists of the Bio-chemistry Division of IARI, Dr. T.S. Raman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2339/75 preferred by petitioner Dr. Gupta which reads as under: Mr. Lokur states that the respondent council would consider the question of taking back the petitioner as a member of the Faculty. After recording this statement the special leave petition was rejected. It was hoped that the respondents would act to honour the statement of their learned counsel. Now that the matter is being disposed of we direct the council to carry out its statement made before this Court within three months from the date from today. Re: R.P. No. 80/76 in S.L.P. 702/76 Dr. T.S. Raman filed the writ petition in the Delhi High Court challenging the selection and appointment of respondent No. 6 as Senior Biochemist on all the grounds which were urged by Dr. Y.P. Gupta in his writ petition. There is also an additional point in his favour in that even though the first Selection Committee constituted to select a Senior Biochemist had directed that the second Selection Committee should interview Dr. T.S. Raman along with other candidates, no intimation was sent to him about the date and time of the interview and he did not have the benefit of the interview by the second Selection Committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peared for the interview before the Second Selection Committee while Dr. Raman failed to do so and he cannot make a grievance about his own lapse. If Dr. Raman was at the relevant time attached to the Institute and was working with the Institute, we see no justification for the ministerial, side of the Institute not informing Dr Raman to appear for interview. The lapse was on the part of the Selection Committee and the same cannot be wished away. The High Court was clear in error in observing that either Dr. Raman was not hopeful of getting the job or he had some other reasons for not applying for the same and therefore his grievance cannot be entertained. This is clearly contrary to record. He had applied earlier and was entitled to be called for interview as noted in the proceedings. It was obligatory upon the second Selection Committee to inform Dr. Raman to appear for the interview and adequate steps should have been taken to give the intimation because he was attached to the Institute and was in active service of the Institute and intimation to him would not require any herculean effort on the part of the Committee. If the matter were to rest here, we would have unhesitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessments are not questioned in the writ petition filed by Dr. Raman and these are later developments and therefore, it would be difficult to give Dr. Raman any benefit at this stage wholly ignoring the later developments. The learned counsel for the ICAR after succinctly pointing out the facts hereinbefore mentioned, submitted that it is not possible to accord same treatment to Dr. Raman on par with Dr. Gupta wholly ignoring later developments. He however frankly and fairly stated that if the Court directs, the Institute has no objection to appointing afresh Committee for making a fresh assessment for ascertaining the suitability of Dr. Raman for promotion to S-3 grade on the basis of the material regarding work done and achievements made by him for the period commencing from December 31, 1976 upto the period he has been assessed or until now. It was further submitted that if the special Assessment Committee which may be set up to examine the case of Dr. Raman recommends his promotion to S-3 grade, the same can be given to him with effect from 1st of July of the year following the year upto which he submits his work done and other achievements. Dr. Raman is in the grade of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the order of merit in each category as disclosed by the aggregate marks finally awarded to each candidate as per Rule 14 of 1977 Rules. In response to the advertisement, petitioner applied on Oct. 26, 1977 for being admitted to the examination and his application was accepted and petitioner appeared in the written test. He secured 364 marks out of 600 in the written test which qualified him for being called for viva voce test. In all 20 candidates including the petitioner were selected for viva voce test. After the viva voce test, the ASRB declared the names of 13 candidates as successful and finally selected them for ARS in the discipline Agricultural Statistics . The petitioner was not among the successful candidates. In fact, nearly 21 vacancies were left unfilled by the ASRB. Petitioner contends that ASRB contravened Rules 13 and 14 by prescribing minimum marks for qualifying at viva voce test at 40 out of 100 and those who did not secure 40 marks, even if on aggregate of the marks were eligible for being included in the merit list, such candidates were wrongly excluded from the merit list. Petitioner further contends that the merit list prepared in contravention of Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e test. It is seriously contended that this additional qualification does not have the authority of law, and that it was arbitrarily devised without any rationale behind it. The relevant rules are Rules 13 and 14 of the 1977 Rules, which may be extracted : 13. Candidates who obtain such minimum marks in the the written examination as may be fixed by the Board in their discretion shall be summoned by them for viva voce. 14. After the examination, the candidates will be arranged by the Board in the order of merit in each category (professional subject-wise) as disclosed by the aggregate marks finally awarded to such candidate and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination. Mr. Ramachandran, learned counsel for the petitioner contended that Rule 13 does not envisage obtaining of minimum marks at the viva voce test even though it contemplates obtaining minimum marks at the written test so as to be eligible for being called for viva voce test. It was further urged that Rule 14 specified the manner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being qualified for viva voce test contravened Rule 14 inasmuch as there was no such power in the ASRB to prescribe this additional qualification, and this prescription of an impermissible additional qualification has a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidate at written test plus viva voce test. Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high-up in the merit list was likely to be rejected on the ground that he has not obtained minimum qualifying marks at viva voce test. To illustrate, a candidate who has obtained 400 marks at the written test and obtained 38 marks, at the viva voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the ground that he has not obtained qualifying marks at viva voce test. This was impermissible and contrary to Rules and the merit list prepared in contravention of the Rules cannot be sustained. It may at this stage be pointed out that the Union Public Service Commission has framed its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RB committed a serious legal error in prescribing minimum qualifying marks at the viva voce test and drawing up merit list on this impermissible method. It would be equally improper to disturb the selection of those who had been selected and appointed way back in 1978. Even though it is true that a serious legal error has been committed in drawing up the merit list, at this late stage, it would be unwise to reject the entire selection, disturbing those who are already selected and may have put in service of not less than 5 years. But it is crystal clear that 21 vacancies were kept unfilled. It is not made clear whether the petitioner has been selected at any later selection. If he is selected at the later selection, nothing further is required to be done. But if he is not selected, the ASRB may draw the merit list in respect of remaining 21 unfilled vacancies from amongst those who were called for viva voce test and who were not selected because some of them like petitioner did not obtained minimum qualifying marks at viva voce test. The merit list may be drawn in respect of those who though called for viva voce did not qualify for being put in the merit, ignoring the concept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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