. P.K .. RAMA.CHANDRA IYE.R & ORS. v. UNION OF INDIA & ORS.

..

A 200 B

• .. [D: A. DESAI & . December '16, l 983

. v'. BALAKRISHNA EkADl, .TJ.] . . . . C01tStitution of J1tdia, 1950 Ari{{:/cs J.2 ·and 32~Indian· Gouncif of Agricuftllral Rcse<ircl;-Whether -instrunzentiifity of Cent.rat Govern1nent-Whetl1e~ c covered by the exp'r~ssion 'other auihorities'~Whether antendable .to· writ jurisdiction .... Articles 14, 16.and J9(d)-Pay ,~ctllc of posi of Professor revisetf-Existing i11ctunbents ndt gi~nted tlte benefrt oj i·evised scale- New inCunzbents _granted the • revised scale-:Defence of e111ployer was there. was nzarginal rei,ision in qualifiCfl.fiohs for the post-Action whether dis~rilninatory a11J unfair. :

. ·Article 16-Selection Co1;1~ittee-~h~ther.l:cis po~er 10 rel~x .cssentl:al i;u~li­ D fications for the post-jurisdiction OJ Courts to interfere ttdtfl "decision of·. Selectiow. Conunittce-When arises. ·

A-falafides~Selectjon Co111n1itlee-Qua/ificatio11 f.equirenwit relaxed to· suit preferred .candic(at~-Sck"ction what/ler yiti"ated.

": l'ubli~ e1np/~yni~1u~Experience· to be ~f value and utility 1nust be ai::{juired after educational qualificaiion obtained-Not while acquiring. Post-graduate qualifi-· E catiun. .

-"Jndian Coun~il vf Agriculfui,al Research 1977, Rules.13aiu."·14 ;. Fixation "of - -.-J.. )1iinitnu111 qllalifying 1narks for tiliglhiiitJ . for viVa-voce test..,.-Further fixatiOn of ( quilti/yi11g 111ark.V to be Obtai~d at viva-11oce for final ·selection·- validity Of

Supre,nw Court Ruie~ 1966 Order XL·& Constiiution oj India, 19.!0 A~ticle LJ1.: F f¥rit petition disf!?lssed by .High Court al/owing prelilninciry objection that. it izad no t jurisidiCtiOn ta entertaitrpeiition_.:...High Couri becoii1es functus officio and decisio~i · Oft 1nerits inconseq~ential-Suprf!tn"e Colirt. in .later. case over-ruling the same pre-' litninary objeclion:........:.Si1p1·em~ Court. e1ititled. to exa1nine matter ~n merits-Review· .ffltition .n1fiintaii1able.

. The Royal. Con1n1ission of <igriculturc coi1stituted in 1926 reconunende<l G . tho setting .up of ihe"Imp.erial Council Of AgriCult'uriil RescarCh-ICAR~ I~ July. 1929, JCAR \Vas registered as a SociC.ty ·\vlth its offici; in. the Secretariat. · ·Jt \vas ,whq11y financed bY the Governn1ent of .Jndla. By a resolution dated. JanUary 5, 1939 the Governn1ent. of India.modified the-status of ICAR from a. department ·of the. Secretariate to one ~f ah attathed office of the Govern~ent_ 9f India .. Rec· ruitrnent to various posts in ICAR \vas made· through the Federal Public Service H Corllmission. Its expenses were voted Upon ·as part of the expenses ··incllrred .in th~ Min~stry Or Agriculture. The control of the Go~enuneiit. of Indi~ perffieated

•·

P. K. lYER v. UNION. 201

through aµ its activities. To it was transferred the ~esearch Institutes set up A· ·by the Government of India. In orde~ to make.it finil.nci.ally viable-a cess _was levied. and ihe pr~~ds wete han~ed. over to ICAR .fl?r its use. ·

On the advent of independence, the linperial Council of Agricultural :RCsearch was redesignated as ·Indian Council _of Agricultural R~arc~. With. effect frotn April 1, 1966 administrative Con~J,Ul over IARI and IVRI and. other institutes was transferred to IC~~R. · · . . . . B- Rule 18 of the !CAR Rules provided· that the ·Society shall establish and inaintain its own·om.ce, ResearchJnstitutes and Laboratories and that the appoint-· meats to the ·_various posts .should be ·made in a~rdan~- wiih the Recruitmea,t Rules framed by t\le Governillg Body. .This rule \Y~ich ·was kept in ~beyance. in January 10, 1966 was bro1:1g:hf into operation in. itS . entirety .eft'eCtive_ from Apri1-·1~

1974. Tlie consequenCes of.this rule· becoming ·operative was ·that ~e·.secretariat o f~9AR ~<ised to pe· an attached o~ce of the-Ministry of Food and Ag_ric;Ulture. · c The Indian Veterinary. Research Institute \vas one of the.institu(es und.Cr the adininistrative control of ICAR. The poSt of ProfesSor ln JVRI in 1958 carried the paY. s6a:le bf Rs. 700-1250." There were· 6 p~sts of Prore~sor in. various disCiPI~nes. Three posts of Profe"ssors were held by. the petitioriers in Wdt Petition N.o. 587/75. On the introduCtioil of the pay-scales 'recOmmerided by the University Grants Comrnission, ·the p.iy-scale attached to tl1e Post cif Professor in the· Institute -was D ievised to Rs·. 1100-1600 during the ye·ar 1970-71 and: six new posts o:f _·ProfeSsOrs in .Various d.isciplines created. Each of the petitioners· who was ·a1ready holding .. the posts of Professor was not given the ~nefii of the upgraded pay-scales,- while the new incumbents recruited t(>the newly created post were awar.ded the revised • '·p"y~scales. This led to ,disturbance in the inter se seniOritY in the cadre of .PfO- fessors. In the Wdt Petition \V.P. No. 587/75 to this Court it was contended that 3.s the petitioners fulfilled· the minimunl' qualification•· prescribed for thC post E· after ui)ward revi~ion Of the pay-scales4 denial of· the revised Pay-scales was dis:. criminatory and violative ~of Article 14, and t~roughly .arbitrary and u_njustified. :'

On behalf of respondents it was asse(ted that the ~evised scale was not.to-~­ autotnaticatly granted to the petitioners-the e~isting holders, ·as the newly crOO.ted po~ts in the cadre of PrOfessor was not the same as the. ·exist1ni-post~ as there Was ~ margin.al revision in the qua!ifications for_ the post of Professor in the revised SCC'le. F. .Th~·petitioner i.n the Re'viCw Petition.No .. 4J77 sought the reView ~f ·the]udg- inent of this Court dated 3~d October, 1975 'in the Special Leave Petition No. 2339/

15. He had filed a.wi:it petition in the High ·court:questioning the con·ectness of tbe. setOCtion o{respondent No .. O.for.the post of Senior Bio-Cbemist·as he dfd· not possess the" essential qualification, .and the order remOving him from the me'm- ber-ship ·of the post-graduate f~Culty' Or_ Indian Agriculture Research Jnstituie. ·. Th_iS petition was '.fesisted by the respondents, on the.ground that neither ICAR G nor IVRI was either a 'State or other a~thoiity' Within the mecinlng·of the e~pression -· in Article .12 of the Constitution. It \Vas further colltended that the Selection·. Comffiittee.had the-po\ver to relax the 6.ssential ,qualificati0nS pf:itainh1g to expefi~ . ence, and t.hat ·the Committee consisted of experts who were highly qualified persons, able at evalu'ating and assessing the relative merits of· each of the candidateS, and that, it \voiild be w1wise to substitute eX.pert's ·decision by Court's decisions. The \Yrit Peti~on was dismtsSed by the High Court on_ the groun_d that ICAR being

202 · S~PREME COURT REPORTS [19S4]"2 s.c.R. A·· "a s?ciety registered ut~dc< ~he SocietieS Registration Act; it was "neither a 'State or other authority' withih the contemplation of Article .12.. It was further bcld ~ · : that the relationship belw.:en the petitioner 3.nd iCAR was governed by fhe rules .aOd the bye-laws of the Society and ICAR 'vas free to fill the post of Senior Bio- :chCmist in any manner it liked, ·and that'as the Petitione·r was not removed from a the rrieln~rship of the F3.culty,_but c~ased to -be· n1en1bcr, it was· not necessary to hear hinl. · 8 This Court upheld th~ decisiOn of the High Court.by its j,udgnrent in S.L.P. No. 2339/75 and also rejected R.P. No. 79/76,

The Petitioner in Re'4l';'V ..Petition No. 80/76 so.ught review of the jud!;ment . in S.L.P. . No.·702.of . 1976 which was disposed - of along . with . S.L.P. No. 2339/1975. · ·The appellant in C.A.· N·o. 1043of1981 filed a writ petition "in the High Cour·t c he allcigi'ng that was selected_ f9r the post of Senio_r Computer in the indian Agri- an culture Statistics Research Institute~ affiliate of lCAR." . The ICAR set up the. ,A~ricultur.11 Scientists ReCruittnent Board-ASRB which fran1ed rules in 1977 artd decided to hold a competitive examin~tion in 1978 to recruit scientists. S~Icc­ tion was to be made _by a competitive exan1inµtion Con1prisii1g a written test carrying ·. 600 marks in the aggregate and viva-vOce test carrying 100· marks. Jt _was furthCr 'prOvided that anYone to be el~gile for b~ing ad1nittCd in the merit list should also D : have the additional qualific~-tio.n .of at least obtaini.ng. 40 1narks in the viVa-vot:c test. The appellant contended that he has ~eCured 364. n1arks out of 600 in the written examination and 38 1narks out of 100 In the viva-voce tpst, ind that the actio11. of Boilrd in fixing ni.inimum· qualifyiilg marks in the viva-vocc exa1nination arid basing the final selection on this criterion lacked both the aO.thority of law and :rules. The High Court dismissed the Writ Petition in lilnine.

(iv) ln.C.A. 1043/81, the ICAR. a'nd ASRB are directed to Prepare the· merit list in respect of those candidates who were called for viva voce test, but were not included in the merit list On the aggregate o·f ffiatks obtained by them. If there · · ls ·a vacancYand the aPpellant cOmes wi~hin the zone of selection he shall be

·'

P. K. IYER V. UNION 2o3 appointed. The appoifltn1ent \vould be prospective and would be- effective from the date of the appointn1cnt. [247 E-F]

2.· (I) _Apart fro1n. the criteria devised by fhc jt.idicial elicta, the very birth of ICAR and its continued existence over half a century and its present p0Sitio1'l · would Ieive no dOubt that ICAR. is almost an inseparable adjunct of the GOvern- 1nent of India having an outward forn1 of being a So_cif!'ty. it could be styled as a Society set up by the State and therefore; would be_ an instrumentality or. agency of the Central Governmcrit and therefore, it is 'other authority'. within the meaning of the expression in Article l~, and the writ ju.risdiction can be invoked against it. [216 BJ •

(ii) !CAR.came into·existcnce as an integral dcparti11c1H of·thc.Govern111ent of. 1ndi.-i. and liter on ·became an attached offi:_ce of the Central GoVerntttent. The composition of.the lCAR as evidenced by_·Rulc 3 could not have been more gov~ crnn1cntal in character than any dcpartrii.cnt·of the Govermnent. The Governing c a . Body of the Society' Cbns,ist of a President of the Society,· \Vho is n'onc other than· Cabinet Minister of the Governriicnt of India. Other. n1en1bers of the Governing Body are en1inent scientistS. nof exce~ding nine in 1fun1ber to be appointed. ' by -the President; there· is none outsirie the Governn1ent in- the GoV'c_riling . ·nady. Rule, 98 1nakes it ·abundantly clear that the Rules of _the SOciety can neither be.altered • nor amended exCep~ with the sanctio.n Of the ·Governn1ent of India. - Rllle 100 shows that the Rules becarnc ojJerative after they were approved by the Governn1ent D . Of India. The audited accounts of the Society a·long with the auditor.'s report' thereon were to be placed before the Society at its An1iual General M~eting and also on the table of the Houses of Parliament. Rule 18 provides that the appoint- 1ner~t to various posts under the s.ociety ·shall be 1nade in accordance with the , Recruitment Rules frarned for the purpose by the GovenliJig .Body with the prior approval Of the Government of India·. The ad1ninistrative a~d -the financial ·con~ teal of the Governn1ent is alf pervasive. The rules and bye-laws of the Society E · can be framed, amended ·or repeal"ect only. With the. sa'nc~ion of the GoVeinment of India. [219 E-F; 220 B-FJ •

Sabhajif Tewary .V. U.O.I. [l975J3 SCR 616 -distinguished and ~imited and. U;P. Warehousing .Corporation v._ Vijay. Narain [1980J 3 SCC 45~ referred to.

3. The· guarantee of equ.ality- in all its pervasive character enables. this · F Court to ren1ove discri1ni1la.tion and to restore fair play in action . .{226.C]

The instant" cil.se, is a glaring example of discrirrllnatory treatn1ent accorded .to old experienced and highly qualified hands with an evil eye and uneq'ual hand. No attempt was made to sUstain tbe scales of l)ay for the post of Pr~fessOr on the · doctr.ine of classification because the· classification 9f existing incumbents as being distinct ai1d separate froni newly recfu.ited hands with fimsy change in essential qualification ·would be wholly irrationar and arbitrary. T~e case of the petitioners G fof being.put in the revised sccile of Rs fI00-1600 from the date" on which newly created Posts of Professors in Sister disciplines in IVRI and other institutes were created and filled in revised scaie iS ~nanswer<' ble and mu~t be conCeded l226 .B~DJ Randhir Singh v· U.O.l (1982] 1 SCC 618, referred to. 4 . The mo1nent the High Court held that it had no JuriSdictiOn to· entertain H · he writ petition, it becan1e /tfltctus officio and there[ore·, its decision on the merit

.,

p. 204

A consi;:Quen~ and.at any rate could not concltide the of the C.ontcrition··is ·or no mat~Cr.- Now that.it has been held _that the writ·peti~ion is maintainable.·on· the finding th!l-t IC~R and its·_affiliates a~e othCr authority within· the me~ning of the_ ~xpr.cssion in Article 12, justice ckmands that the court must examine th(: ~on­ tentions On merit. The ptelimii:ia:ry objeciion. over-ruled and ·~e ievie\v petition allowed. [229 F-G] · I

· s·. ,· It is w~ll--settfed -th;t expefience to·l,Je .of valu~ and utility n1ust be acquired· B af~r tl).e educ'1tonal qualification is obtained-·and hot while acQUirtng the post- graduate quahficatiOn. [232 A]

• ._in the ii!stant case, preParing thesis Clfter giadu<'tion {o'r· acquiring post-~ graduate degree .would rtot count toWr:n:ds presCrlbed ·experienct · -qua_lificatidn. ln th~ case of Ph.D °.cteg:ee·awarded on research the situatic~n nlay be diffe;e11:t. .[232 BJ

c 6. 'The Court must IoOk \Vith.resp~,ct tipbn th~ pcrformi>.nce Of dutieS experts· in. their respective. fields. However,_ the .task of.. ushering. z .Society based. by 'on rule of law is erl1:rust.Cd io this court and it cannot abdicate· its function$. · Once' it is fllPSt satisfactorily established- tl'l:at the Selection Conunitteci did O:ot. have thC power ·to relax i.:ssential qualification peftaining to expefience, ' .. the eritire process -Of 5".ilec.tiOri of thi 6th respondent was in contr:avention of the established nom1s , prescribed. by the advertiseinent and Power of the Sdectio~ Coffimittee and pro.; . D ccdure for fair and jusl seleC.tio11 and equality in the ffiatter of public ~mployme1lt and. to_ rectify resultant inji.i.stice and· esiabiish -constih.itional value this Court must interfere. [234 I>-EJ · · ·

_Stale "fBihar v. Dr. Asis Ku111a~ Mukherjee [i975] ~ SCR 894, referred .to.· . ' - ' ' . In the instant CTJ$e, the first Selection Committee examined. the suit!lbility of seven crndidates including _the petiiiollef~ and ~pecifically recorded its, finding E. that none of the candidates .. interviewed or cOnside.red in absentia including : . respondent No. 6 Who w3.$ selected at. a la:ter. stage~ fu~lled a~l .the esseiltial quali_ficatio-ns laid down for : the post. Ttie Committee recommended that .. ·the post be re-advertised -after ~mplyfying the essential qualificatiOn jn the . mt'ltter of exPerience, Viz. '10 yea1;s research exper.ienCe in the field of protein Chemis_try?. .The -post. was the post of Senior. Bio-chemist. Jnitialy experience . required was·in _the fiei<l of Nutrition with p:iticulilr reference tO Qu(l'ntity and F · · .Quality of protein in food grainS as.evidenced by· published work i,yhile'the ampli- . fied esselltial qualification was-research·experience ill the field of protein Cheffiistry.. It is difficult to efface the i~pression that the amplification was done· .keeping in · View the qualification'- whic~ respondent No;' 6 ha.d .. ·~oreovcr respondent No. 6 · , appeared not· tc c8-rry on research. in th.e line of Nutrition o.r protein Chemistry ·3rid therefore h~. did not fulfil· the qualification at <'ll and he could not therefore haVe even bee~ Called for interview by the Selection Committee. The .Selection Committee alsO did nOt h.ave the- power to relax the essential qu"lificati'on, fo.r th~ . post; ·The seleCtjon of respOitdent NC1; 6 is. contrary to ·rules and orders. aiid in · violation o( prescribed norn1s~ ·He. was ifieligible. for the poSt when seleCted a~~ his selcction.. nd appointment has to be quashed and set aside, [230 G·G, 233 E-F, 234 F] '

1.· Th~·High Court was·clearly in err.or in.obsl.:"rving that eit~er Dr. Raw_n· H (petitioner in R.P. No. 80176) was not hopeful of getting the job or he had some · other reasons for Dot applying for the same .and therefore his grievance· cannot

P."K. IYER ·V. UNION. 205

be entert"ined. This ·is clearly contrary to record. -He had applied earlier and - A' ) w_ s entitled to be called--fcir interview as noted in the proceedings. It w~~; obli- gatorY upon the second ·selection -Comrriittee ·10 _inform -him to appear for t~e intervi'e and adequate .steps should have been taken to give the intirriation '"because he was attached t9 the institute and .was ·in ~ctive sCr1ice of.the institute and intima- iion to him would not require any herculern ·effort on the. p?.rt :of the Committee. But he.-has been-assesSed thrice 'by the Assessment Committee for p~Omoti0n to S-3 grade. and found wantin~. · T~e Insti.tute sh~ll set up a speth.•l ~~sessment B Committye t9. 3ssess· his sllitability. for promotio~ t,o .S-3 gr_ade ·by ~xamltfing his work.from 1976.. He is.not entitled to any further relie.f. [239 0-240A, 241 EJ

__ ,

8. A combip~d-re3ding. of_Ruies · 13 and 14; indicate that, it i~ open to the Agricuitu:faI Scientist Recruitment Bciard to prescribe minirhtirn marks which the candidates must obtain at the written test before becoming eligible for viVa-voce test. After the Candiclaie obtain~ minimum marks or· more at the written test he c ... .becomes. eligible "for being called for .viva-,voce test, ~nd he has t() appeir at the viva-voce test. Neither Rule· 13 nor Rule 14 nor any other rule enables. tti~- ASR'B. ,'-to prescribe nlinimum qualifying marks to be obtained by the_ cilndidate at the viva-voce fus_t. The language ·of Rule 14 clearly- negatiyes any s"ucb power in the·. ASRB when it provides that after the, written test if the c..1.ndidate hfl,s obtaiqed · 1Tiinim,um marks, he is eligible for being ·Cfllled for viva...voce test and the final merit list would -be. drawn up according to the aggregate of ·marks obtained-by the can- didate .-in. : wd°tten teSt plus viva-voce examination. {244 D-fJ · Ii:i the instant ~ase; (CA N~ .. 1043/81) ihe :adctiti6nal qualificat!On \vhich :ASRB prescribed tO_ itself that-the ·candidate must have a further qualificatiori · obtaining minimum markS in the viva-vocc. test dves not fi.nd place in Rules· 13 ilnd and 14. If such ·power is 2!aimed, it h~s to be explicit and. cannot be read ·by ) neces'sary .iinplication for the Obvious rcasoll that such deviation from the rules . is likely. to cause irrepearable and irre'versible ·ham1. onW an additional qualifica- E tion Of obtainin.g.mininlun1·. marks.at_thc viva-voce test fa· adhered to, a candidate _who. may figure high-up in thC metit-list was likely.to be rejected on th"e ground . that ·h~ .has not obtained n1ihimum. qualifying marks· at viva·vOce· test.. ~s list ... ·~.·· prepared in contravention of the Rules caiinot be sustained. ··However, it" is not possible at this late stage to reject'· the entire seleCtion and it would be equally ii:nproper tO disturb the selec.tion. of those who had b~n_ selected and :~ppointed way back .in 1978. If there is a·vacancY.and if the appellant comes within.the zone of selection on the aggregate of inarks obtained by hin1. his case shall -be con~ Sidered for appointm<!nt prospectively and n·Ot rctropsectively. -1244 G-H; 245 C; ~D;~ . . .

· ORIGIN~L JuRISDicTION : Writ Petition No. 587 of 1975 (Under article 32 of the ConstHution) G. with.

Review Petition No. 4 of 1977 • (@SLP (Civil) No. 2339 •of 1975 & H Reyiew Petition No.' 79/76) ·.

• •

•

206 SUPREME COURT REPORT.S, [1984}2 S.C.R.

A and

Review Petition No. 80 of 1976 (Arising '0;1t of SLP (Civil) No. 702 of 1976) . and

B . Civil . . . No. 1043 of 1981 Appeal .

Appeal· by Special leave from the Judgment ;111d Order .,dated .• tire Sth May, 1980 of the Delhi High Court in Civil Writ Petition No. 553 of 1980.,. ~

c .YogeshwarPrasad and Mrs Rani Chhabra for the Petitioner in WP. 5.87/7.5 & RP. No .. 4/77.

M.G. R amchandran for the Appellant in CA.· .No. 1043 of 1981. • . (

- ',.c,,;,.....--..

· Abdul Khader, Mi.<s .A" Suhhashini and Girish Chandra for the D Respondent in WP. 587/75.

K.G. Bhagar~ Addi. Sol: Gene;a/ and Ms. A. Subhashini for the Rcspoudent in RP. No. 4/77. .

'b,. Gobwdhan and C.V. Subba Rao for ·Resnc-1id.enl m CA. E No. 1043 of 1981.

' B.N.. 'Lokur, and. C.N. Ralnaparkhi for Respondents. 2-7 in WP. No. 587 of 1975. .. 1 (

Judgment of the Cour; was delivered by

DESAI, .J. Tn th.is group '.of writ pet1t1on, civil ·appeal. special leave p~titiqn and review petitions, a_ common que.:~tion_ of la\v. is raised whether Indian Council of Agricultural Re.search ('lC AR for short) ·and its affiliate Indian Veterinary . Research Institute (lVRI · for shortfare either itself tlie·Sta{e or such other authority .as would be comprehended in the.expression 'other authority in Art. 12 of the Constitution 7

. Re: 'W.P. No. 587/75 : • . . .

H Pe;itioner No. l was Professor of. Animal Patholcgy, pet1ticmr No. 2 was Professor of Animal Genetics and petitioner No. 3 was •

•

• ~. K. IYER ":UNION (Desai, J.) 207 • ·Professor of. Veterinary Parasitology, all attached to IVRJ. Six A posts of Professors one each in Animal Pathology, Animal Genetics. I Velerinary Parasitology, Animal Nutrition, Bacteriology and' Phy- ... siology were created on the i1itroduction of the post-graduate wing • in IVRI in 195.8 .At the relevant time ·the post of Professor carried the scale of Rs. 700-)250. Of the six posts, first mentioned, three posts of Professors were held by the petiti~ners in their respective B ·discipline, ·On lhe introduction of the scales recommended by th.e · University Grants Commissio~. the pay scale attached to the post of Professer in IVRl was revised to Rs. 1100-1609: After the up-· ward revision during the year 1970-71, the cadre of Professors in· IVRJ was expanded b'r -creating six ne\\'. . ·post of Professors in vafiouS disciplines. Surprisingly, ach of· the petitioners, ,who ·was already c - -·~ holding post of Professor, was not given the benefit of the upgraded scale attached. to the post of Professor wliile ol) the other hand. the new·incumbent recruited in .the newly created posts in the year 1970-?°f were a warded the revised scale of Rs. 1100-1600. ·This led .to the disturbance in the inter se seniority in the .cadre of Professors " and manifested· an anomalous. position that the old incumbents of • D the posts. of Professors such as petitioners, ·continued in the pre- revised scale of Rs· 7bO-l250 while .the new incumbents were put in the revised scale of.Rs I 100-1600 both having the.designation of Professor and there is no appreciable difference· in the qualifications attached to .the post .. )Vhen this was. brought to the notice of the authori\ics concerned, the ICAR With the con•urrcnce of the Minisfry of Finance E ). resolved .'as per. decision dated· April 6, 1972 to ·award the·· revised scale of pay attached to the post of Professor to the· peNioners, b11t this was subject to the condition that it wollld not be automatic but ~ the existing incumbents of posts may be considered for revised scale "" ·along with other suitable .Persons. Tt was imp'.ieit in· the condition prescribed that the petitioners wi~ have to stand ·in. competition ;,ith others applications, if there be any, and go througli the ha+ard of a . .°" fresh selection for tlle post each one was alreadv. holding.. This is the' first grievance voiced by the petitioners in the writ petition con-. tending that the petitioners were qualified for the posts of Professor. and that ea~h of them was holding the post from 1963, 1970 and 1970 •. respectively. TM petitioners made. various representations basing their claim inter a/ia on fair play, equality of opportunity.in.the matter of public employment arid equal pay for equal work as well as the provision co11tained in Fundamental Rule -23. The petitioners ~Jsci· ~ .contend that they fulfil the minimum qualification prescribed for the · post.a_fer upward rt:,vision of the pay~sca1e; and they_have the. requfsi1&. H . experience and ihat they are. performing the same or identical duties . .

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• 208 .. SUPREME COURT RF.PORTS ·. [1984] 2 S.C.R.

A a; are being performed by ne\VlY recruited. Professors in sister di~" ciplines, and that denial to the1n of the revised pay scales for. foe post . of Professor .aparf. from being . discriminatory .and violative . of Art: 14· is thoroughly arbitrary ancf unjustified. lt .appears that pursirnnt to the didsion dated April 6,' 1972, the ICAR 'issued an adyertisement on May 21, 1974 inviting applications for the post of ProfeBsor in B. . . Animal· Pathology,. Animal Genetic$ .and Veterinary Parasitology · in the revised scale of Rs. I J00,!·600: These were 'the posts alrea.dv held· by petitioners. The advertisement set .out ·the .essent.ial 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 c' . of inviting f~esh applications for post already held by ·the petitioners disclosod a cover attempt t0 remove the petitioners. 'from the posts held by them for years. ·-Petitioners further contend that only three po·sts ·held by the. petitioners have been advertised inviting the aj:lpii- cations for fresh recruitment while there we.re others .\vho were ho'ding - posts .of Professors in the pre-revfsed ·scale .and. to whom bendlt of y

D automatic upward revision was granted and this disclcscd n-0t cnly the bias of the ICAR but also· subjected the petitioners to grcss dis- crimination. Serious allegations of bias :ind malafid.o have been · mad·e·against respondent No .. 6, the Director or' IVRI, and Director General ufJCAR, which.need not be set out here. It may, however, lie .stated that tho.ugh the \·a~ious functionaries workihg .in IVRI and TCAR are highly qualified persons, profes~ional rivalry had led to such poisonini; of the· atmosphere and character assassination ·had become so rampant and the. environment had become so snffo- , cati~g that the ·Government of India ·had to appoint a Committee -·-1 presided·over by late Shri P.D. Gajendragadbr, retired Chief Justice ·· of the Supreme Court' with wide terms of reference which. amongst others included' the recruitment· and personnel policies. of !CAR as well as Institutes a!id Centres working under it and io suggest rnearnrcs '!" · for th,eir improvemen\. It is alleged that absolutely incmrcct, imprc·- ·' per and prejudiced .entries are made. ii1 confidential reports with a· vieiv to harming foe. ~areer of the perso~s who have fallen froin the grace of the Directo.r al)d that therefore, the C'ourt,should .lift the veil. of the so'called society and peep i1ito the realities of life. The . ... petitioners ,,ccordingly prayed for an appropriate writ, order or . direction to quash ihe advertisement dated May 21, .1975 inviting . • applicatfons for the· posts nf Professors in three subjects already held by th.e petitioners and to confirm 'the petitionerS'in the aforemeiltion(d .H p:ists and tc'i give them the benefit of the !'fOVised.scale from the date from whkh. fr was given try Professors in sister disciplines and to quash

P. K. IYER v. UNION.(Desai, J.) 209 the adverse entries in' the confidential ~eports of the three petitioners. A On these averments petitioners filed the present writ petition under Art. 32 of the Constitution. .. Re : S.LP. No. 2339/75 with R.P. No. 4/77 :

·one Dr. Y.P. Gupta filed Writ Petition No. 276 of 1972 in the B High Court of Delhi questibning the correc.tness of the order removing ,. him as member of the faculty of the post-graduate school of· Indian Agricultural Research Institute {IARI for short). Petitioner Dr. Gupta alsll' questioned the. validity of appointment of Dr. S.L. Mehta

- respondent No. 6 in the High Court to the post of Senior ,Bio-chemist ·in IARl and claim.ed. that he was entitled to. be appointed .to that post. This petition was resisted by the respondents primarily on ·the ground that neither ICAR not IVRl is either a State or• other authority within· the meaning· of the expression in Art. 12 of the c

Constitution, When the matter came- up before the Division 'Bench of the Delhi High Court, a .direction was given that in view of the importance of the questions that arise for determination in the writ . ·petition before the court and in view of the .various decisio.n which . • 'have to be recpnciled, 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 consi- derations : E ''.I. Do the petit1oners have legal right to chaUen~e the

- 2. appointment of respondent 6 ?

Has .the Director-General of the !CAR acted in· con' .travention of any legal obligation in making the appoint- ment. of respondent 6 .? F .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 0r non-compliance with the prescribed procedure G in_ making it ?" ·

The court answered the fint question against the· petitioner h~lding tQ.at ICAR is a society registered under the Societies Registra- tl'on Act and it is neither a State nor other authority within contempla- H tio< of Art. i2 of the ~onstitution. The court further held that

210 · SUP.REME COUl\T REPORTS (1984] 2 S C R.,

A the. relaii.on between the petitioner and ICAR' is gMerned by a con- · tract and the r~les and the bye-la\vs or tl1e Society .and !CAR was :'>._ •· free to fill in the post of Senior Bio-chemiste in any manner it llked. The court observed that .the petitioner being· a mere employee, he • has no legal right agafost the employer and in the .absence of 'any· · statutory elemen{ governing his emplo)'ment, the relation is governed purely by .a contract. and a· breach. of contract, if any, would. ·not permit a declaration in favour of the petiticner. Bri<fly, the .court held that the remedy by way of writ is not available against !CAR. On the second question the court held that the Director-General owed no obligation or legal duty in making the ~ppointment of the

- sixth respondent which can be. enforced by a writ. ·petition. · Questions c Nos. 3 and 4 were cdea!Uogetber and it was held that the pleadings . were inadequate to permit a finding. of ma]a fide and in the absence of proof there. is nothing to show tl1at .the· appointment of the sixth res~ondent was vitiated either by mala fides. or by ·non-compliance · with procedure.. Consistent wjth .these findings, the writ pe.tition · . of Dr. ·Gupta was dismissed. Simultaneously, the writ . petition D filed by one Dre T.S. Raman being Writ Petition Ne. 669/72 was • dismissed. by the common iu4gmcnt:

Dr. Y.P: Gupta ii.Jed S.L.P. No. 2339 of J97.5 in this Court. On O:ofober 6, 1975, this Court.directed a notice to be· issued to ibc ·respondents to sh~w cause why special leave to 'appeal· shoui<l 1iot E. · be ..gra.nted. · When the .m1ttCr came up again before this Cm.irt on July 2!, 1976, Mr. Lokur, 'learned counsel. appearing for the !CAR

- .stated to the Court that the respondent-council would consider the ·.: ·-f. question of taking back the petitioner as a member of the post- graduate faculty ofIARf. After recording this statemei1t, the Special leave potition was · disljlissed. ·Petitioner. Dr. Gupta filed Review F .Petition No. 79 or 1976 requesting the Court to review its. order dismissing the special le~ve petition. This review petiticn was rejected . · y on October 27, 1976. As second review petition wns not .barrecl" at the relevant time, Dr. Gupta filed Review Pctitien No. 4/77 which is.· directed to be heard in th.e present group of appeal, writ petition • · and special leave· petition. G · J?e : R.P. No·. ·so of1976. : Dr.T.S. Raman whose Writ Petiti~n No. 669 of 1972· was heard along with Writ Petiticn of Dr. Gupta and which was a!s'o dismissed by the common judgment, filed Special Leave Petition ·No. 702 of 1976 in this Court·. This petition was ·R · dismissed by the .Court on Augu.t 30, 1976. · Dr. T:S. Raman filed . Rovieiv P.otition No. 80 of. 1976 which iS . being heard i.n this group.

.. P. K. IYER v. UNION (Desai, J.) . 211

Re: CA. No. 1043/81 : Appellant Dr. Om Prakash .Khauduri A fifod Writ Petition No. 553 of 1980 in the High Court of Delhi alleging •. .. that he· was selected for the post of Senior Computer with Ifidian Agricultural Statistics Research Institutes, ana affiliate of.JCA'R. · iCAR set up Agricultural Scientists Recruit~ent Board (ASRB) ·which • deCided to hold a competitive examination to recruit scientists to be appointc'd under various disciplines. ICAR framed rules setting . ' B ... out the terms and conditions for ac,\mission to. the competitive exami- ri~tion .. Appell~nt applied for admission to the ~ompetitive examina- tion iii 'Agricultural Statistics' . .'discipiline. The written test ·was

- ----.;.,'

.. ldd froni 1st to 4th February, 1978: The Board incharge of . the selection and appointment on. the comparative merits as evidenced by the performance in the w1'itten examination selected 20 candidates · i~cluding the appeUant as ~aving obtaine~,e pres~ribed qualifying marks for. the purpose .of viva voce examilra'tion which was held on .. c

. April !0th and llth, 1978. Aftedhe viva voce test, 13 candidates ., 1iuro declared as successful.and were offered appointment a·s scientists in the di,eipline 'Agricultural statistics'. The appellant failed to qualify for the. same. According to the appellant, 21 vacal)cies i·omained unfilled: · Appellant contends that he h1!'il secured -364 marks out of 600 in tl\.e written examination and 3il m'arks out of JOO in the. viva voce test. · It is alleged that the appellant was declared . Un5uccessfu\ because the .Board incharge of the examinqtion ·has by itself .·determined without any authority· that anvortc who obta;ned less.than40 marks atthe viva· voce examination would not be eligible for selection for the posts. · It is therefore, contended that the action 'of the BJard _in fixing minimum qualifying' in arks in the viva voce · examination and basing the final selection on this arbitrarily .fixed criteriou lacks both the authority of law and rules and. thai the B.o.ard ..,... has acted arbitrarily and without the authority of law; ·Appellant ·accordingly ..made representa.tions \)ut failed- to cvqke a sympathetic reply, and therefore, the appellant filed a writ petition in. the High . Court of Delhi which was dismissed -in limine on 'the ground that .the · writ petition ·against ·,the resppndent was not maintainabl~. Hence ., this appeal by special leave.

·ordinarily one ·would. sincerely .deplore th.e d·elay in disposal G of a problem brought before the Court, but occasionally, one comes ac1:oss a case in which the sheer passage of time and the fast removing .. scenario of changing pattern of .law resolves the. dispute to some extent . H Mr.- Lokur appearing for I<;AR raised a preliminary objection

•

212 SUPREME .COURT REPORTS [I 984] 2 s.c.11. ..

that ICAR is not an agency or instrumentality of the State and there- A fore it is not .comprehended in the expression 'other authority' within the meaning of the· expression in Art. 12 of the Constitution and • thereVire the High Court was fully justified in throwing out the petition at the threshold: ·Mr. Lokur directed a frontal ·attack drawing sus- tenance from the decision of Delhi High Court that JCAR being a · Society registered under the Societies Registration Ac.t and being B . neither a State ncrother authority within t~e tontempla·ticn of.Art. 12 nor an instrumentality of the State, writ jurisdiction of the High Court cannot .be ,invoked against it. Sabhajit Tewary y. Union of : India & Ors. <ll was the sheet anchor of M;. Lokur's extensive sub-.

- '-~-. ( missions because in.· that case a Constitution Bench presided over c by· the then Chief Justice ruled that the Council of Scientific and · lndi1strial Research, a&J_ciety registered mider theSccieties Registra: lion Act, was neither a ST!\te .nor other auothrity within the contempla- • tion ·or Art. 12 and · therefore, the writ petition was ·held not to he : maintainable against ii. And even though this matter had became ·part-heard .in 1980 and the ·hearing was resumed in 1983 before a D different Bench, the vigour of the sustained attack was not the leasi dimmed even "though the law expanding the width and ambit of the expression 'State·· ·and 'other .. a.thuority' in ..<rt. 12 had taken strides culminating in Ajay Hasia ~tc. v. Khalid Mujib' Sehrarardi & Ors. etc, <2> And Mi. Lokur continued his submission with unabated fury even though the learned Solicitor General Shri K. Parasharai:t appea- .E ring for the Union of India fairly conceded that in view of the cir- cumstances disdosed in the case and the tre.nd of the decsioris, it is. ~ · not possible to contend that ICAR and its affiliates JVRI and JAR! walud riot be other authority.being instrumentalities of the Siate and · . against which writ jurisdiction could be invoked . • F 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 registered under the Societies, Registration Act but substantially when set up it was an adjunct ofthe ·Government of India and has not ·unde.rgone. any note- ' worthy change .. On the advent of the· provincial a'!tonomy under G the Government of India Act, 1919, 'agriculture' and 'miimal lms- bandry' .ca1~e under the heading 'transferred sUdject' with the result ). that they came within the exclusive jurisdiction of the Pre v)ncial Goyern~ent · Development ·or agriculture and research in agriculture

H co [1975) 3 s.c.R. 616. (2) [19811 2 S.C.R. 79. '

- P. K. IYBR v. UNION (Desai,.J.) 213

became the_ responsibility of the Provincial Government. Even A then ·a Royal Commission· on agriculture was constituted in 1926 to enquire into the agricultural set up and the rural economy of the · country a.nd to make recommendations to consider what firm steps • . -are necessary to be tal<en by the Central Government in this behalf! The Commission in its· report recommended the setting-up of Imperial • . Council ofAgricultural Research, ·Acting upon this recommendation·, Government of India sent· a telegram to the Secretary of. State on B April 24, 1929 informing the latter that the process of setting up of the Council is under way and that when setup Council would be a Society.' On May 9, 1929, Secretary of State appr"oved the· proposal of the· Government of India subject to variations mentioned therein .. By

- ··its Resolution dated May 23, 1929, the Central Government directed that Imperial Counci!" of Agricultural Research should be registered as a Society under the Registration of Societies Act •. X.XI of 1860. c The Resolution . . further provided that with respeci to the grant to be made to the Co1;ncil to meet the cost of staff, establishment etc.; the Government of India decided that for reasons of administrative convenience, it should be in the same position as a department of the Government of Indi;t Secretariat. The Imperial Council of Agricultural Research was s.et up in June .1929. A direction was also given that the research institutes were to be m_aintained by the Council. Intheir counter-affidavit filed in the High Court of Delhi it was conceded in paragraph 27 that the Imperial Council of Agricultural Research should in future be an attached.office and not the department of the Government to be entirely manned by Government staff and the secretariat staff of the. Council was to. be paid· from the grant to

- be given by the Government ·for its administration and they would be Government servants and' the Secretariat 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 Resolu\ion dated August 4, 1930, Govern- F ment of. India directed that for · reasons of administrative con- venience "the Governbr-General in Council has now,. decided that the Imperial Council of Agricultural Research Department, as the Secretariat of the. Councir will henceforth be designated, should be. a regular departm_ent of the Government of India Secretariat under G the Hon'ble Member incharge of the DCiJartment of Education, Health and Lands" .. A note was submitted .on December 29, '!937 to the then Viceroy conc.erning the status and position of the !CAR as a Department of the Government ·in which it was recommended that .JCAR should 1:wt only be maintained as a distinct entity inde- H p_endent pf the Government of India and with a view to· achkving

SUPRIJME COURT REPORTS . · [l 984] 2 s.c.R

A this positici~. the office of the ICAR should not i~ future be a Depart- ment of the Government of Jn4ia but should 'be an attad1ed oijice. · Thi.s prqpo,sa\ was approved by the Viceroy on January 14, 1938 .simultaneously .expressing this anxiety io sustain the prestige cf lCAR. ·Ti,e .next step .;s one taken.by the Resolulio~ dated January 5, ·1939 • by which the Government of India modified the status oft.he !CAR B from the Department of the Secretaria·t lo one of an attached office of the Government. of I;1dia; A letter was addressed to· the. High Commissioner for· India in London on January l 4, l939 intii\iating to nim that the Secretariat of the !CAR will. cease to be a Departmer:l o(the Government of·India'and will be an attached office under the Departme~t of Educatioi1, He~lth and.La.nds with effect from J~nuary c JS, 1939. ·Till then recruitment.to various posts in !CAR was-made thr~ngh Federal Public Service Commission and this was to be con- -tinued even after the change in the stati1s of ICARas an attached office as evidei1c~d by the Jetter dated August 24, J938 by the Joint - Secretary.to Government of India to tl;e Federal Public Service Com- mission. A- bilL was introduced in .the Central Legislature styled as the "Agritultura\ Produce Cess Bill, J 949''. The statement of object ·and reasons ~ccoinpanyi11$ the lii11 re_cited that the Central Government have provided grants to the tune of Rs. 84 lakhs for tl1e cxponditure·or l\le Council and took notice. orthe fac.t that the Coui1cil has practi~ally no source of-income other \ban the contri~ution· from the C.entral Revenue which may be unstable. depending upon lhe of . state of finances the Central Government: ·It was further .observed that in order. to place Council on a more secured financial positicn, it has been decided to levy a cess at the_ rate of 1/2% on ihe valuc·of

F ·certain . ..... agricultural .. coi:nrnodities and the p;·oceeds ·.. ' of . the·proposed

The bill w.as moved.- In the debate· upon the bill, a statement was . . cess are estimated to amount in a normal year to about Rs, 14 lakhs.

Iilade on behalf of the Government of lndfa that the .Central Legisla- . lure will retain its full .right of interpellation and of moving resolutions - and will still vote on the grant of the.'petmaneni staff, and some of the activities of the CounciL . kother words, an assurance was given ·that .the Central Legislative Assembly \Vil! have positive coi1frol over the affairs'.of the Council to the some extent and degree when G it was a Department br an attached office of the. Government of India. On the advent of!ndepende~ce .. The Imperial Com:icil of Agricultura 1 Research wane:,designated as Indian .Council of Agri.cultutal Research. 'With· effect from April i, ·1966, administrative contr~I over IARI and .. IVRI and other institutes was transferred. to ICAR simultaneously· H ·placing the· Government staff of the institute~, at the disposal of JCAR/ as ·on foreign se~vice. ·This is eviden~d by a c~mmunkation dated

P. K .. IYER v. UNION(Desa0J.) 215

--< April 19, :J966 _addressed by the Ministry of Agriculttiral, ·Food, . A Community, · Development and Cooperation to' the Directors of Central Research. Institutes. An option was· given to \he members • of the- staff ~f. the Institutes, 'administrative control of which was transferred to ICAR and the date for exercising tlje.optlon was exten- • ded by the communication d.ated November 9., 1966. In .the mean- time, the Government of Indfa enforced the new rules framed by B the ICAR effective from January 10, 1966 keeping rule 18 in abeyance . .,_ · With the change in the status of the ICAR, Department of Agricul- . tural Research and Education ('DARE' .for short) was set up in the· Ministry of Agriculture and \t came into existence on December )5, ·

- -- _, 1973. Th.is Department was -set up with a view to providing necessary Government linkage with ICAR. Tue major fm\ction of the Depart- ment was to look after all aspects of agricultural research and educe tion involving coordination between Central_ and State agencies; to attend io all matters relating to the ICAR; and to attend to all matters concerning the development of new• technology in. agriculture~ animal husbandry and fisheries, .including such functions a> plant and animal - . introduction and exploration, and soil and land use survey and plan- D ning. By this very Resolution, ·the Director General of ICAR was _ concurrently designated' as Secretary to Government of lndir, in the DARE. The posi!i011 of !CAR was clarified t.o the effect that in· .:'. the reorganised. set-up, the ICAR will have the autonomy ·essential for the ·effective functioning of· a scientific organisation and deal 'with sister Departmenis the Central . Government,with State E .. Governments and also with international agricultural research centres t -tlir6ugh the DARE. Rule, 18 .of the. ICAR ·mies which was kept- in. abeyance on January I 0, 1966 was bro right into operation. in its entirety effective from April l, !974 as per communication <!ated ' March 30, 1974 by the Ministry of Agriculture to the Secretary, ICAR r . ·The consequence of Rule 18 hecoming operative· was that the Sec- · F of retariat ICAR ceased to be.:an attached office of the Ministry of Food and Agriculture and the Society shall · fnnctiOn as 'wholly financed and controlled by the ·society'. This last sentence · hardly' 0

•makes any. sense: Till Rule 18 was .kept .in .abeyance, recruitment to· rcAR was done through the Union Public Service Commission 'as evidenced by the le.tter date,d August 24, 1938 of the Government " G. , of India to the Secretary, Federal Public Service-Commission; Simla, ~ Rule 18 as stated earlier became operative from April I, 1974. Rule ' 18 pro~ides that 'the Society· shall establish and _maintain. its own .office, Research- •Institutes and Laboratories. The appointment to_ the various posts under the Society's e.stablishment was to be made ·H in accordance with the Recruitment Rules framed for the purpose •.

•·

216 SUPREME COURT REPORTS [1984] 2 s.c . R.

A by the govcrnmg body with the approval of the Government of India",

Apart from the criteria devised by the Judicial diet the very •

8 . birth and its cofltlnued existence over half a century ~nd its present · position would leave no one in doubt that ICAR is alsmcst an inse-. _parable adjunct of. tlie Government of India having an outward form of being a Society, .it could be styled_ as a Society .set up by the ,State .. ·and therefore, would be an instrumentality of the siate. ·

lCAR start¢d as a Department of the Government of India \----~ c having an office in-the.Secretariat even though it was a Scciety regie- tered under the Societies Registration Act. It was wholly financed by the Government ·of Iildia. Its budget was voted upon as prt · of the expenses ·incurred in the. Ministry of Agricuitm:e. Even v.hrn I

- its §talus underwent a change, it wr.s declared.as ai1 attached cfticc · of the Gover.nment of India. The control of the Government cf India permeates through. all its activities and it is th~ bcdy to wliich tLc D Government .of India transferred Research· Institutes set up by it. . In order to make . it .financ;ially viable, a cess was ·levied .meaning thereby ' ~ . that tile taxation power of the Stale 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 lndia ever flinched and since its inception it was setup to carry out the recommendations of the Royal E Commission on Agricnliure. In our opinion, this by itself is suffi- cient to make it an instrumentality of the siate. '. ·[twas however urged that The Council of Scientific and lr.dustrial Research (CSIR' for short).a society register<d under the Sccietks. Registration Act and having an ident;cal set up as well as ccnstituti.cn: was held not t 0 be an instrumentality of the State er 'other authority' under Art. 12. In Sabhajii Tewary's case, this Court held that the. CSiil did not .have a statutory character like the Oil and Natural Gas Commission, or the Life Iilsuranc<! Corporation or Industrial Fi~ance Corporation, and it was ·a society .incorpor~ted in accordance with the provisions of the Societies Registration Act. The fact that the .Prime Minister is the presidei1t or that the Government appoints nominees to the Governing Body or that the Government may ter- · · minate the inembership will not according to this Court establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and. industrial research, the institution and financing of specific researches,' establishment of development' a1\d assistance. to special instittions

',•.

P. _K. !YER v. UNION (Desai, J.) 217 •

for scientific study of problems affecting particular industry in a A trade,· the utilh;ation of tbe result of the researches conducted under the auspices of the Council towards the development of industries • in the country are carried out in a responsible manner, and these aspe9(s are not sufficient to reach the eondusion that the Society was ari agency or ;nstrumentality of the Government. This Court also referred to. some decisions which have held that the companies incor- B porated under the Companies Act and the employees _of these com- panies do not enjoy the protection available to Goverrinient servants as contemplated in Art. 311. This ·Court accordingly concluded that CSIR is not an instrumentality of the Government comprehended

- in the expression 'other ·authority' within the meaning of Art. 12 of the Constitution, and the writ jurisdiction cannot be invoked against it. Much water has flown down the 1amuna since the dicta.in Sabhajit Tewary's case and conceding that it ·is not specifically. overruled in . later decision; its ratio is considerably watered down so as to be a decision confined to its own facts. The case is wholly distinguishable on the facts apart from the later indicia formul~d by the Court for ascertaining whether_ a body is 'other authority' withihn the meaning D of Art. 12. A-mere c01riparison of the history of ICAR as extensively set out herein before and the setting-up of CSIR would clearly show that ICAR came into existence as a department ()f the Government, · continued to be an .attached office of the Government even though ). it was registered as a society and wholly financed by the Government and the taxing power of the State was invoked to make it financially. · E 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 deci_sion in Sabhajit Tewary's . case.would .render no assistance and would be clearly distinguishable. .

r The ratio, if any, of the decision in Sabhajit Tewary's case was : ' F examined by a Constituti~n Bench of this Court in Ajay Basia's case and.it was held that that 'decisio'n is not an authority for the proposition that a society registered under the Societies Registratio.n Act, 1860 can never be regarded as an authority withih 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 G 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 ariving at the conclusion· that it was not an ageny H- of the Government and therefore, it was ·not an authority for the

. . . . • 218 SUPREME COtlRT REPORTS [1984] 2 s.c.R. ·

A ·· proposition that a society registered under the. Societies Regisfration Act for that reason-alone would not be cowprehended in· the expressiOn 'other authority'. ·Jn Ajay Hasia's _case, this Court after taking note of the decisions in Ram_ana Dayaram Shetiy v. The International Airport . of India.& ·ars.'ll and U.P. Warehousing Corporatio~ v. VijayNarain,l'l ·and .after extracting _various . indicia for determini~g whether B, the particular body was an agency or fost;umentality of the Siate within . the meaning ·of Art.. 12, prbceeded .to examine 1vhether the society which had establisheil Regional Engineering College, Srinagar a11d which · was registered' under the_ Jammu & Kashmir Registration of Societies .· Act,· 189!1 was an .instrumentality or agency· of the State and would ' be comprehended in the expression 'other authority' in Art. 12 ..fo C · .. t)lis .connection the Court observed as under : . • ' ' . ·- . . . . "It is in the light of this discussion that we must now proceed to examine whether the ·society in the present case· is an "authorit,y" falling within the. ddntion of "state" in . Article 12. Is it an instrumentality or -~gency of the Govern- D ment ? The answer must. o~viously be in _the affirniative . if we have regard to the Memorandum· of Association and the .Rules of the_ .Society. · The composition of the Society is dominated.by the representatives appointed by the_ Central· Government and the Governments of Jammu & ·Kashmii; . Punjab, Rajastlian and Uttar Pradesh with the approval ·· · E of the' Central Government. The monies. required for running the college are provided entirely ·by ,the Central . Government; and the Government of Jammu & Kashmir · and even if any other monies are to _be received by · the . Society, it C\(n be done only with the approval of-the State arid the Central Governments. The Rules to be made by F· ·the Society are also required to have the prior approval · . of the St.ate and the·Cen_tral Governnients ·a_nd'the accounts of the. Society have also to be submitted to both the Govern- ments ,for fueir: scrutiny and satisfaction. The . Society is also t-0 comply with. all such .dfrections ·as ·may be issued by the State·_ Government with the approval of the Central G Government in respect oLany matters dealt with in_ the report of the Reviewing .Committee. . The _control of the State and the Central Gover~ments is indeed so deep and. pervasive · that no immovable .property of the_ Sodety can be disposed . • H .. . (I) (19791 l S.C.R. 1014 at 1042. (2) [1980] 3 s.c.c.. 459: .

: P. K. IYER v. UNION (Desai, J.) 219

of in any manner witl1outilw approval of both.the G6verri- .· A ments. The State and 'the Central.· G.overnmenis have even the power to ai>point any other_ person or persons ., . to be ·members of the Soeiety and any member of-the Society other than a .member representing the State or the Cenlr_al Government can be removed from the membership of the Society by the State Government with the approval of the B Central' Government. The Board of Governors, which is in ·charge ·of general superintendence, direction and conliol of the affairs of Society and of its income and property is a!So _largely controlled by ·nominees of the State and the Central

- Governments. It will thus be. seen tha.t the State Govern- ment and by reason of the provision· fodipproval, the Central Government. also, have full coµtrol of tlie working .of the c Society. and it would not be incorrect to . say tba't the Society is mereJy a projection of the Slate and the. Central Governments and. to use. the wotds of Ray, CJ. in Sukhdev Singh's case (supra), the voice is· that of the Staie and the · Central Governments wd ·the bands are also of the State D and the Cental Governments. We m~st, therefore, hold that t)l.e Society is an instrumentality or agency of the. State artd the Central Govern·1nents ·ind it is an 'auihor'ity' .\vithin .the meaning_ of Art. 12.'' . " . - . 4 -

Applying _the criteria, there ·is little doubt that ICAR is .an •. E instrumentality or the agency of the State. It· came into existence .. as an integral departinent of the Government of India and later on· ·t- - became ari attached office of the 'Central ·Government. 'I.he com~ • pesition of the ICAR as evidenced by Rule 3 could .not. hllve beeri· · more governmental in character-than any department.of the. Govern' merit. The Governing Body of the Society would consis.t of a Presi- F. dent of the Society, who is none other than· the Cabinet Miriistei' · of the Government of India for the .time being incharge of Agricul, ture; the Director-General, a distinguished scientist to be appointed by Government of India would be the Vic~-President and the· Principal , . ·Executive ··officer cif the Society. He is concurrently appointed as Secretary to Gove.fnmenfof India. Other members of the Governfog G Body are eminent scientists. not exceeding nine in number to be . appointed by the President that' is the Minister; not more than five . .·persons for their idterest in agriculture to be appointed by the President that is the Minister, three. membets of · Parli~ment and Aditiondal/ Joint ·secretary to the the Government of India in the Departinent of H ·Agriculture to be nominated by that Department; one person, appointed

.. 220 S\)PREME COURT REPORTS [1984] 2 S.C.R. • A by .the Government of India to represent the Central. . Minisl.1y/ .Department. concerned with the subject 9J Scientific R°'earch ond the Financial Adviser of .the Society:· There is none outside the. Government in the Governing Body. Rule 91 deals with.the finances •. and.funds of the Society and the·sources of income are the ·cess kvi~d by the Government under the Agricultural Produce Cess Act and B the recurring and. non-recurring grants from the Government of India .. The Rules of the Society were initially framed by the Gov- ernment of India and Rule 98 makes it abundantly clear that the.)' can neither be. altered nor amended except with the sanction of th~ • Gov~rnment of India. Rule 100 shows that the Rules at the relevant time in force become operative after they were approved by the c Government of India,. and ·Came into force· from the date to .be . specified by the Government of India. Rule 93 provides for audit of the accounts of the Society by such person or person as may be nominated by the Central Government. Rule 94 provides t)lat the Annual Report of the proceedings of the Society and of all work r midertakeri during the. year shall be prepared by ·the Governing Bcdv D for the information of the Government· 0 f India and the membe.rs of the Society,. ·and the report and ·the audited accoun.ts of the Society along with the auditor's report· thereon shall be placed . before the Society at the Annual General Meeting and also en. the the .table ·of the Houses of Parria.ment ..· Rule 18 .provides that the appointment to the various -posts under the Society shall lie .made E in accordan~e with the Recriutment Rules. framed for the purpose. by the Governing Body with tJ:ie prior. approval of the Government of India but prior thereto it was by the Union Public Service Ccm- --I mission. The administrative and the financial ccntrcl of ih Gc\fln- • i 0 ment is all pervasive. The rules and bye-laws of the Society can l:e framed amended or repea.led with the sanction of the Government. F .of. India. The case before us is rnuch stronger than the one con- sidered by this Court in the case of Ajay Hasia and therefore, the conclusion is inescapable that the Society is an instrumentality er agency. of the Central Government and therefore, it is 'other authority' within the meaning of the expression in Art. · 12: As a necessary corollary the writ jurisdiction can be invoked ·against it and therefcre G the decision of Delhi' High Court must be reversed on this .p·oint. · The preliminary objection i~ accordingly overruled; • • • Having rejected the preliminary objection; we must now'proceed to examine the contention raised in each petition and appeal on merits. H Before we proceed to examine the contentions on merits,

p, K. IYER v, UNION (Desai, J.) 221

_ . ~nhappy though- it may appear to be, and howsoever one would like .to avoid reference to it, it is inevitable that ,one mu~t take note of the A ·deplorable state of'affairs in the administration orthe affairs of !CAR and the uncongeniel atinosphere in which :the highly qualified agri: cultural· scientists in this country have to work. ICAR w~ s "t up • for undertaking Scientific Research in Agriculture, Animal Husbandry and allied subjects on which the entire economy: of this country B revolved· till the advent of industrial r.ivolution. it wa_s set up 'with· a view to imparting speed and momentum to research in agriculture and allied subjects. so that the countrv may move from the middle _,_) ages. to the modern methods in agricultural technology. Unfortu,

- nately, since its inception, the .domestic atmosphere has not proved congenial to the flowering of the' genius of the country's best talent in agricultural research. This came 1o light when on Mav 5, ·l 972, newipapers all over 'he country flashed the tragic news that a young c agricultural scientists, Dr. V.H. _Shah, who was working as Senior Agronomist and Associate Project Coordinator in the IVRJ had • ...• committed suicide by hanging· himself in his residence· _the previous night. There was a commotion in the Parliam~nt and during· the D debate in the House, Membe'rs of Parliament regretfully referred to previous suicides commitied by· agricultural scientists, one such · . being of Dr. M.T. Joseph, Teaching Assistant,Divisian of Entomology, ·

- IARI who had committed suicide on Januar!f 5, J960. These were not stray incidents bui the outcome of persecution,· . torture .and harrassment emanating fr0<11 t_he polluted environment in !CAR E and its affiliates. The then Minister for F~od and Agriculture·stated in the Parliament that the Gove~nment of India was not happy with the procedure of selection of personnel in the !CAR and prcceeded to inform the House that they have ·not been too happy with the . present system of recruitment which necessitates a scientist applying '>· for posts and being interviewed by selection committees thrcughcut 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. TM !CAR 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 JCAR th.at It is not amen- able to this Court's writ jurisdic;tion which would imply tba_t they have skeletons to hide and slrun their exposure to the Court's examina- tion of the internal affairs. To continue the narrative, a committee was appointed under tlie Chairmanship of Shri P.B. Gajendragadkar, H ;eitred Chief. Justice of .India and. Vice-Chancellor, University of

222 .SUPREME COURT REPORTS [1984] 2 S.C.R . A Bombay and at the ·relevant time Chairman, Law ·commission with wide· terms of reference inter alia to' enuqire into 'the recruitment : policies of ICAR 'and to review the recruitment' and personnel policies pf ICAR, Institutes and Centres working under it and to suggest measures. for their improvement. This Committee submitted its. . Report and we :take note Of oniy one of its findings which reads as · I :-under:

· "AlLthe.sc complaints have been echoed .by several scientists wh_o met the Comniittee. In the opini~n of the Committe, __ , ...._

- · rizese complaints have some substance; The Panel ·of Advisers .

also hold the . same qpinion. The Committee is of the view c . that most of these complaints a.re due to improper working ·conditions in the Divisions .. A scientist b~cngs to a Divisicn .

.. . • • . · ' , where he carries out his ·work. The atn1osphere in. the· Divisi_on and the fnstitu'te should be conducive to research actiVity. ,-~.u > (cmpl)asis supplied)_. D . At another stage, the Committee h~s observed that: 'in the pi-,esent circumstances where a crisis cif character and confidence .see~s tohave overtaken the entire administra,t1on of the ICAR, we · think it i;; absolutely necessary that recruitment of personnei_:jn all the Institutes with the !CAR should revert to the UP.SC.' Tiie ·'E Committee made it clear, it· made th~ r~commendation, beta use it . was-satisfied that there is obvious dis-satisfacfrn with the recruitments_ made from ·J966 onwards.and the Report when browsed through would leave an inefaceable impression on the reader thatthe Committee was-- dissatisfied with internal atmosphere in !CAR and that there was an amount .of dis-satisfaction about the recruitment .policy and - that it was such a perceived reality that it wculd be. idle to ignore the same.· Even the Director-General. who is ·concurrently also the Secret~;y t~ the DARE in charge ~f ICAR conceded before tlie · Committe_e that it would b.e better if, for some time, the recruitn:rnt el) . in trusted to so~e- outsfde agency. 1') In'Chapter XI of ihe Report, _ -tile Committee noted that the complaintr, made against the ·Head of -the Division· about. no~ giving adequate facilities for- work and the lack ofacademic atmosphere ·and an absence of. domestic apprcach • permitting free discussion on _researdi projects and results obtained. we're genuine and· they required to . . . be .remedied.. . . There. 'is further . .

.(1) Re~ort of the !CAR Enquiiy Conunittee, 1973; Chapter VII page 54. , 0

·H - (2) Report of.the !CAR Enquiry Cornmitee, 1973, Chapter II page 12.

p, K. IYER V: UNION (Desai, J.) 223 . . . . .

the recommendation with .regard to vertical structure of. Scientists and the scales of pay attached -to each cadre. H is unhappy to note thai things have hardly imp~oved siJJce the Report of the Commitiee because in. the first writ petitiori, petitioners were again to be exposed to chazards of a fresh .selectioll and the complaint of Dr. Y.P. Gupta • is essentially tl)e same as· noticed and commented upon by ihe Com- . mittee. · · · · :B Re : W.P. Nd. 587175: Jn this writ peti(ion, 1he suqstantial grievance is that even though the three petitioners' were 'respectively holding the post of Professor in Animal Patliology~Animal Genetic.s ) a~ Veterinary Parasitology from 1963, 1970 and 1970 respoctively, • ,7\· wil'en the pay-scale for the post of ~rofessor on the recomi:nendation of the· University Grants Commission. nnderwent an upward revisicn to. Rs .. 1100-1600, .the ICAR instead of straightway granting the .,. · · scaleto the petitioners, the holder.s oftlie posts· of. Professor, prccceded .• · , ·. to.issue an advertisement on May 2i, 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 appoint- .. D ed some others ·in different subjects and disciplines as }'rofesscrs and ga vc them the revised stale while the petitioners w~re .left to languish in the old scale. According to the petitioners, apart from gross discriniinatioll in. the matter of equal pay for equal work; the dire(:! consequence of this i,infair ana arbitrary action of the . third ·rospondent was the adverse affectation ill the seniority in the cadre of· E Profeswrs because those who were· appointed in the· revised scale sec.red a. march: over the petitionei·s who .continued to langufab ·in the prNevised· scales. · Petitioners contend ·that· the. situation is recreated which was adversely commented upon 'by the Minister · · in the, Parliament that the recruitment .policy adopted by ICAR nec;essitates a. scientist to apply for posts and being inter:vie,Wed· by F. selecti.on committee with attendant hazard and consequent frustra- tion. Petitioners tl1erefore pray firstly fo1 cencelling. tt,e adv~~•"· . ment .issued for the purpose of inviting applications for the posts . already held by theni' a.nd secondly' forgrant1n·g thmi .e·quali!y of. treatment in .the matter of pay-scales with. other. Professors with whom they stand on terms of equality and ·are better equipped because G. of longer experience. Petitfonets ;ay that in 1970-71 si.x posts o.f -i... Professor w~re created in the.revised ocale cf Rs. 11(0-lf.CO at IVRI. in .the· discipHne Of Poultry Science, Poultry .Pathokgy, Vet<rireiy . Public Health. (Calcutta Centre of IVRI), Biochemistry, Epid<miolc gy and Veterinarv Public Health (IV.RI Centre) .. The nviscd oca!e H · -\yas .sanctioned for thesf' newly created P<?sts· pUrs112n1 to flie recrin~ ·

224 SUPREME COURT REPORTS [1984} 2 S.C.R.

A .niendation of the University Grants Commission. ·Let ·it be made distinctly clear that the revised scales were .,meant for the post of Professor in IVRI not for the post in any particular discipline. Peti- tioners were holding posts o.f Professor in lVRI, and therefore the p'otitioners contend that the posts of Professor held by them would be goyerned by the revised scale eff<;etive from the date on which new • B posts .were created and filled in, in the revised scale. Respondents' rosponse to this contention is that !CAR informed the Director of IVRias per its le(te.r·dated Ja~uary · 20 . 1971 that three posts of Professor in the scale of Rs. 1100-1600 in Veterinary Bacteriolc·gy, Anim1l Nutri~n and Animal Genetics have be.en sanctioned suject • to tho condition that°the ·existing _posts of Pro_fessor cbviousi in . · c the same disciplines in ihe sc,.Je of R's. 700-1250 stand abolished. Shorn of embellishmcrit, it would mean that the posts in the afore- • m,ntioned three subjects shall hcncefort~ carry the revised w1:e cf • Rs. llOOcI600.· ·The respondents assert that the revised scale was not b' automatically granted to the existing holders cf the p·osts but 1J·.ey .• wo1tld bo considered with other applicants for P.ppoiutment. in the higher scales, if they are otherwise suitable. ll was also '":cl th.t in th:e letter of appointment as Professor each of the petitioner was informod that as the post of Profes~or 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 E · with an affidavit; it belie1 the· statement. There is nothing in the . letter of appointment of each of the petitioners that wh.en 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 posk of _Professor. in Veterinary Bacteriology, Animal nutrition and Animal Qenetics in the pre-1evised scale were already filled in and whether the. holders of of the posts got the revised sca 1e . · without any fuss of fresh selection .on the part of the respcndents·. i. -h~ counter-affidavit on behalf of respondeng .Ncs. -1,2,3,4,5 and JJ · is conspicuously silent on this point: However,. it· is contended that the ·"qualifieations for post of Professor while sanctioning .the 1oviscd scale was altered in as. much as when the. post of Professor carried the scale of Rs. 700~1250, the essential qualification required wcs cnl~ a. p3st:graduate. degreo in the specific discipl'nc' whereas in t_he post · cre.ated in the revised scale; a Dcctroate degree in· the subject along with the· specialisation in the relevant discipl'ne 'was prescrihd ard which fact can ·be gathered from the model qualifications pmcribed for similar posts: in all the research institutes of!CAR. It was. further· as.serted that sarlier the minimum experience required was about

,.

P. K, IYER v. UNION (Desai, J.) 225

5 years whereas it ·was re~iscd to' 7 years. Nothing ·\vould be 1nore A misleading than this eye viash performance "wl1ich really hides the true intendment namely, to ex.elude the present Incumbents of the .posts of Profess.or and to expose them t9 a competition with same rank outsiders who may as in· the. case of Dr. ·S.L. Shah score a march in the na1ne.of 'scleCtion · \vhich ~cnerallv leaves a_ grey afea. Peti- tioners Nos. 2 and 3 do. hold a D;ctorate.in. their respective.discipline .B · \Vi_th.~Xperience-extending·111orc tl1an 7".)1ears in the ~isciplinc. _Petili~~­ ner .No. I, who does !Jill hold a Doctorate has to his credit.M:R.C.V.S. which bas been recognised by the Government of lncfo as possessmg . post-giaduate qualifid1tion in Vetei·inary qiid· Ani.1nal SIOiences and teaching posts including the post of Directof of lVRl. and continu" to be' recogn·ised as guide/teacher for post-graduate degree courses. C· The subterfuge was to expo.se the petitio1;ers· to 'a fresh selection test· w.ith ·all its consequential m1certaini.ties and that Was the exact thiilg found ·bv Dr. ·oajendragadkar Co.mmitt~e. That is .why it can be l' said that like the true Bourbons '!CAR has learn\ noihing and. for- gotten nothin.g/ The hard fact is that the petitioners were holding ·the. posts or' Professor when ti1c ·revised scale becarr.e effec!ive. 111 ,D the letter d,1ted January 20, 197i sa11ctioning revised scale for the post. q.f Professor, there is not even. a whisper that the existing incum- bent· will tie denied. the benefit .. ·,,, fact, it is .well-known that the U:niversit"y_ Grants ·con11nission regularly rccorr;n1cr:ds-- revised stales for ~very p1an perio·d~for teaching-posts and the revision .takes ncte of. i111dequn:te scales sa·nctioned till t.he date" of re.vision. The .onl); E justifi~ation DITered by the respondents for denying the petiti,;11ers

- . the benefit of the revised·scale is to be found in ·the counter-affidavit r of Dr. M.S. Swaniinathan .• It is conteride.d that tlie newly created . p )St in the cadre of Profrssor is not the same ·as the th~ri existing p)st ai:id that th~re was 1narginal revisicin in the·· quali_fitations for·.'· the. PJ.~ts· of Professor in the' revised -~calc· and that ·petitjonefs _\Vere F . not discriminated because they• \Vere giVen aq .Opporfunity to contest for the pnstsin ;he re~ised scale. Thc.ju;tifitation is tea fti1my to . merit any serious conSiderntion. . . _n1or.e. so ·in view of.the fact that it ..is . . - . diffi.:u 1t tJ ~-11v.i':lage a sitllation in- such _institutes, :undertakin:g- adv3nc~ J ros~a·ch in. Agriculture and Ani1m\l Husbandry where persons holding G Doctorate qualification and enjoying the status of thi: post .cf Pro- fessor would be governed by two different scales even though the' d,uties, resp:J'nsihilities. and func.tions in vario~s $istcr. disciplines are idenli::ai.' Ii} such.,i situatio~··Art,. 39(d), tru~t assist us 'in reaching a ·fai·r and_ just·. concll1s-ion. ~laborat.ing the ·underlying i.r.!endmenf H of Ari. 39(d); · Chinnappa Rcddv, J.· in' Randhir Singh v:· Union of

226' SUPREME COURT REPORTS (1984] 2 S.C.l\;

A India & Or.i." 1 observed that construing Arts. 14 and 16 in the iighf 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 properly applied to ,the ~ases of unequal scales of pay based ·on no classification or irrational classificaticn though those drawing the different scales of pay do identical work under the same B employer. The case in hand is a . glaring example of discriminatory · ' " .

treatment accorded to old experienced and highly qualified hands with an evil eye and.· unequal hand and the liuarantce of equality in all its pervasive character must enable this Court to. remove dis- crimination and to restore fair play in action. No· attempt was made to .sustain the scales of'pay for the. post of Professor en the doctrine ·c of classification because the classification of existing incumbents as . being distinct and separate from newly recruited han.d with flilJlSY. change in. essential qualification would be wholly irraticnal and arbitrary. The case of the petitioners· for teing put in the 'revised scale. of Rs,.) 100-1600 from the date on· which newly created posts of Professors in sister disCiplines in lVRl and other i11stitutes were created and filled in in revised scale i.s unanswerable mid must' .be conceded.

When the matter was discussed threadbare Mr. Atdul Khc~er, .learned counsel for the Union of India stated that all the petjtioners would be put in the revised scales from the. time the post .of Professor E iri upgraded scale was filled-in in sister disciplines. Mr: Khader •. stated .that petitioners Nos. 2 and 3 are already .in the higher grade . and any attempted fresh seletion to fill-in those posts has been can-

- celled. He further stated that the first petitioner .bad to be uncfficially -,( ( put in the same scale on accoµnt.of the failure of the first petitioner to exercise his option to be in the employment of the !CAR and that F as by now he has exercisecJ..,his option he will ·enjoy the same benefit. Tlius Mr. Khader fairly conceded thafall the petitioners will be put· . in the revised scale !rom the date fresh recuitment was made 'in sister disciplines in IVRI in the revised -scale, and if the seniority was dis- turbed on account of the earlier approa.ch, the same would be rectified.

G Ifthe petiiioners are entitled to the re~ised scale as hereinabcve ·. indicated, and should be put in the -same pursuant to the mandamus · 'we propose to issue in this case, it is immaterial whether the advertise- ment' which was issued is cancelled or not. If the respondents still want to pursue the a.dvertisement, they. may do so without i.n any (I) [1982] 1 s.c.c. 618.

P. K. IYER .. v. UNiON . . (Desai, J.)

manner affecting the position of the petitioners and the petitioners . A nee.d 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. s:S7 of 1975.

Re : R.P, No. 4 of 1977 in S.L.P. No. 2339/75.: B Dr. Y.P .. Gupta filed Writ Petitibn No. 276 of 1972 in the High Court of Delhi.. In this writ petition, he primarily raised two con- . tentions : (i) tliat the selection of respondent No . 6 for the post of s~nior Bio-chemist was illegal as he did not p0ssess essential qualifica-

.. tions, and (il) the removal ·of the petitioner from the m.embership of the Post-graduate Faculty was unjust and invalid. · c ft was alleged that in Dec·ember, 1970, ICAR advertised a post of Senior Bio-chemist in IARI in the scale of Rs. 1100-1400. The essential qualiiications were set out in the advertisement as under:

,,(i) . Doctorate in -Biochemistry or Organic ·Chemistry or agricultural Chemistry. (ii) JO years research experience in the field of Nutrition with particular reference. to quantity and quality of . 'protein in food grajns as evidenced by publislied work .. . '(iii) Ability to plan, organise and guide research .involving biochemical techniques as. applied to protein chemistry and radio-tracer studies."· ·

Aniongs.t others,' petitioners Dr. Y.P. Gupta, Dr. T.S. Raman ·and respondent No. 6 in the High Court Dr: S.L. Mehta applied for the post. A Selection Committee was set up with Dr. J. Ganguly; F· Professor. of Bioch.emistry as Chairman and Dr: P.K. Kymal a.nd Dr. ,N.P. Datta as members. Intending candidates including petiti- oners Dr. Y.P. Gupta, Dr. T.S. Raman and respondent No. 6 Dr. S.L. Mehta were interviewed by the Selection .Committee. The , that none of the candidates interviewed Selection Committee found or con~idered in absentia fulfils all the essential qualificaticno. laid G . down for the post and therefore, the Committee was unable to re- commend any nanie at .that stage. The Committee further recom- mended that the post may be readvertised and essential ·qualificatipn No. 2 should be amplified by adding the clause 'JO years research experience in the field of protein Chemistry.' The. Selection Committee fJ further recommended that from amongst the candidates interviewed

A . .228 ; SUPllilME COURT REPORTS . . . [1984] i

· and 'considered in absentia tlwse whose names were set out in the report be calledfor.fresh interview whiCh may be held afier the post S•.C.R .. ..,_

').. . . is advertised. afresh with expanded essential qualification, · This list includes the· names of petitioners Dr. Y.r: Gupta and Dr. TS. Raman as· also respondent-No. 6 Dr. S.L Mehta . A fresh Selection Corn-· .· mittee \vas set up which included respondent No. 5 Dr: M.S. Naik B agafost whom numerous allegations of maia fides have bee11 ~ade, The i1ew Selection Comtnittee interviewed Dr.. Y.P. Gupta along with others .. Ultimately, the ·second Selection Committee recommended pr. S:L. Mehta for th.e post .which led to the' filing.·of the petition inter a/ia 911 the gr~und that Dr. S.L. Mehta did not satisfy the mini- ·"'· mum es.sential qualification. . c Another griev.ance in· the petitio'n ;s that petitioner Dr. y,p, Gupta was a member of the facuJty',in the· post-graduate school at IART from 1965 to May 1971 and he was illegally and arbitrar;lv ·removed.from the membersh;p of the Faculty. Jn the communication dated ·Juno 15, 1971 by the Assistant Registrar to Dr. M.S. Naik, D Head 6f the Biochemistry Department, Ann. P-1 to the petition hi the . High O)urt, it is stated that the letter of Dr. Y.P. Gupta dated May 30, 1970 \vas considered by the Academic Council which una.nimously ~esolved ,that Dr. Gupta'. was not .interested in continuing as a member of the Faculty and hence the Council" reg1et to utilise. Pis service as :i member of the Faculty to. the post:graduate school any more.'' E · Thus actording to the "petitioner, he was removed from the member- ship of the Faculty wl1ilc accordi,ng lo the respondents by the letter

- dated May 30. 1970 Dr. Gupta ·submitted his resignation which was accepted by the .Academic Council with regret: -1 ·. • The High Court reje~ted the petition primarily on the ground ihat no writ petition lies against TARI, a ground no more available to the petitioner. On the merits, the High Court held that Dr. YP. ."'"!. . Gupta has failed to subs(antiatc the allegations of·mala fides'.made against· respondent .No. 4-DL M.S: Swaminathan and respondent· No. 5 Dr.· M.S. Naik. The High Court further held !.hat the Selection . Committee bad the power to relax the essential qtialificaticns and i G. the vOl/y fact th.at respondent No. 6 Dr. S.L' Mehta was appointed on the recommendation of the Selection Committee it must have been done· by necessary implication aft~r. relaxing· the essi.ntia! quali- ficationand therefore, the appointment of respondent No. 6- Dr: S.L. Mehta was valid.and imquestionab.Ie. · With respect to the second H ~- gdeyance, the High Court' held. that Dr. Y.-P. Gupta' ceased to be a men1ber of the Faculty and that he was not removed from the member- • '

• . . P. K. IYER v. U'JION . (Desai, J.) . . 229

ship and it was not necessary .to bear. him· because it was not.a case of removal but ofcessation' of membership and thetefore no· .relief l ' can be granted to Dr. Gupta. · •

Before'· we proceed to· examine the contentions raised by Dr. Gupta on· merits, we must dispose of .a prelimin~ry objection raised on behalf of the respondents: It was submitted that not only the 'writ petition filed by Dr.· Gupta w&s dismissed by the High Court · B on merits but S.L.P. 2339/75 against the decision of the-High court . was rejected by this Coµrt on July,-21, 197() after recording the state- ment of l\1r. Lokur, learned counsel who appeared. for !CAR as .also the Institute that .the Academic Council .w9uld consider the questl~11 of taking back the petitioner as.a member ·qf the Faculty. Thereafter, ·Dr. Gupia filed R:P. No. 79/76. which was also. rejecte·d by this c court on Oct. 21/, .1976. At the 'relevant time as the successive. review petitions were not· barred, Dr. Gupta filed R.P. No. 4/77. T)lis review petition .was kept pending and was finally directed to. be heard with the Writ Petition No .. 587/75, by the orde1' of this Co.urt' in C.M.P. No. 17350/79 dated Decemb.er 19, 1979.. Preliminar} objec- D tion .is that no case is 'made out b} the petitioner for review .of th.c decision of the Court rejecting petitio~ for special leave ·jjjcd by the petitioner. . The writ petition filed by Dr. Gupta ·in the High Court on a reference made by a Division Bench was heard by .a Bcnth of five Judges and the larger Bench .focussed its attenl'OJl on the maiii question whether the wiit jurisdiction can be· invoked against ICAR and its· affiliates .and i{was held ·that the .wtit. ·jurisdiction cannot ·be invoked. Once the High Court held that the writ juris<)iction. cannot be Invoked, it could 110t proceed to exami11e the contentions raised • by Dr. Gupta ·on merits. The. moment th.e High Court held that it had no jurisdictiou to e.ntettain the writ petition,. it became functus · )· 'officio and .therefore, its decision oil the .merits of the co.ntention is of no' consequence and at: ~ny rate could not conclude the matter· against the petitioner.·. Now that it is held that the writ. petition is maintainable on the finding tha.t lCAR. and ·its affiliates are other .. ·.l authority within the m~aning of the 'expression in Art. 12 of the. Constitution, justice· deman"ds that the. Court must examine the con- tentions of Ik Gupta on ·merits. We. accordingly, overrule . the G. · preli1ninary objection ·raised on behalf of responde.nts and· p10cced to examiue the cont.erttions on merits by allowing the review petition No. 4of1977 and grant special.leave to appeal to' the petitioner . .Both the contentions may be separately examined. • H Th~ first contentio.n· is that respondent No .. 6 Dr. s.t. Mehta

•

•

• .230 SUPREME COURT REPORTS [1984] 2 s.c.R.

A who was selected by the Selection Co~mittee for the post .of Senior Bio-chemist after the bizzare exercise undertaken to find a suita bk person to fill in the .post o'n the earlier occasion, did not fulfil Gue of the essentiai" qualifications for the post:· 1t was urged. that in order t.o 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 arlver; . tised, one of the essential qualifications was '10 ~ears ·research experience i_n the field of Nutrition with particular reforeuce to quantity ..... and quality of protein in food grains ~s evidenced by pllblished work.'

- It is nofin dispute tliat Dr. Gupta, the present pet't'cner, did satisfy th'.s and other.essential qualificat;ons. The first _Selection CcmmittEe c examined the suitability of seven . candidat~s . including petitioner Dr.. Gupta; Dr. T .. S Raman, petitioner in cognate pe\ition and res- pondent No. 6 Dr. S.L. Mehta. The Committee specifically recorded its finding that none of tl1c candidates. interviewed or considered in absentia including respondent No. 6,. selected at· a later stage, fulfils all the essential qualifications laid down for the post. The Committee D recommended that.the post be readvertised after amplifying the essen_tial qtialificaticin in the matter of experience namely '10 years research )OXperience in the field of Protein Chemistry'. The post was the post · of Senior Biochemist. lniiially experience requlred was in the field- of Nutrition with particular refere)lce to quantity and quality of · protein ·in food grains as evidenced by published work wl1ilc . the E amplified essential qualification was research experience in tlic field of protein Chemistry. It is difficult lo eface the impression that .. ·'. the amplificatio11 was done keeping in view· the. qualification which Dr . .S.L. Mehta had and even- t))en the question did arise whether. he satisfied the original or the amplified essential qualification. The. Committee recommended that pursuant to fresh adve1tisement, ii F ~ould' ~ot be necessary for the petitioners Dr." Gupta, Dr. T.S. Raman and respondent"No. 6 Dr. S.L. Mehta to submit afresh application a·nd they should be interviewed again with other candidates available on readvertisement of post. The Selection Committee was recons- tituted by nominating respondent No. 5, M.S. Naik, Head, Division'· of Bio~cbemistry, IARL All members or' the first Selection Committee G were available. ]'lo explanation is offered what necessitated expanding the Committee by nominating Respondent No. 5 on the Selection Committee. And let it be recalled that the relations between petitioner Dr. Gllpta and respondent No. 5 were by that time considerably strained. It )s. therefore difficult to escape the conclusion that the . H purported .amplification of. essential qualification appears to be a . device to exclude .Dr. Gupta who fulfilled the first prescribc,d essential·

• • J'. K. IYER v, UNION (Desai, J.) 231

qualificat on and oblige respondent No. 6 to fit into altered qualifica- A tion.

Two errnrs are pointed out in connection with the proceedings of the second Selection Committee in which Dr. M.S. Naik partici- pated, namely, that the proceedings were vitiated on account of the bias -of Dr. M.S. Naik and that the Committee failed to interview B. ·Dr. T.S. Ra marl and his case we~t by default not on liccount of his· fault but on account of inefficien.cy 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 c a detailed examination of the contentions · raised by Dr. Gupta unnecessary. though we cannot refrain from expressing our y distress· about the recruitment .method adopted by the ICAR and its afliliat~s. 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 affiliate~ by Gajendragadkar D Co1nn1i~tee, has any i1npr.ove111ent becon1c noticeable ?

Dr. Gupta challenged the selection and. appointment of res- pondent 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-che~ist is .only of academic interest. However one aspect which we .cannot overlcok is that by this process of selection seriously questioned in this petitiop, a Dr. S.L. Me\lta has scored march over petitioner Dr. Gupta and his co-petitioner Dr. T.S. Raman in the matter of higher scale of pay:

The firsi question to which we must, t\lerefore address ourselves is whether there is any substance . in the contention of Dr. . Gupta. . that even applying the amplified essential qualification, r<spondent · No. 6 Dr. S.L. Mehta was not qualified for being selected for the post ? The finding recorded by the High Court in this connection is eloqµent to establish that Dr. S. L. Mehta did not fulfil either the original or the amplified .essential qualification·, of pertaining G ·to ·experience. Says .the High Court that the research experience· .respondent No. 6 Dr .. S.L. ~hta started from October .1962 when he was preparing research thesis for M.Sc. The selection ·took place in February !972 with the result that the research experience · of Dr. Mehta fell short of"IO years. This finding was not only not H controverted but is unassailable. And we do not subscribe to the

232 .. SUPREME COURT REPORTS ' • [J 984] 2 ~:C.R • .A view .that the period spent in. preparing· thesis for M.Sc . .:..Cmark. not . Ph.D . counts towards required. expei:ience. 1t'. is well-settled th~t experience to be of value ·and utility must be ~cquited after the educa- tional qualification ,.i.s ·obtai11ed and· not while acquirinR the. ·post' T

:graduate qualification:· ln 'the case.of Ph.D .. Deoree awarded on researc)l ~he situation may be different, · But' preparing thesis after B ·graduation for acquiring post,graduate · CJ.egree would not count "· towards ·prescribed experience qqallfication. Respondent· ]'lo. 6 qualified for M.S.c: in .1964 and Ph.D. toward the end of 1966 in .soil science and Agricultura'l. L:hernistry under the guidance of Dr. ,. N.B. Das a11d joined se1vice al JARl in July, l 969. These ,facts are

c . uncontroverted and therefore,. the High 'Court ov,)ooked .\he fact that respondent No. 6 Dr. s·.L. Mehta had research experience exten- '---- ding only over hardly· a. period of 5 years. · Further the High Court failed' to notice that respond.en\ No. 6 appeared ·~at to carry on research in the line of Nuirition' or protein. Chemiury and· therdore he. did not fulfil th.e qualificatiol) at all and in our opinion, he even could ·not have been. called for interview by the Selection Committee. Not D onl.1 that. in .para' 10 of the writ petition i~ the H'igh Cou;t, it was speeificc\liy asserted that respondent 'N,;.' 6. Dr. Mehta did not ·satisfy · the original or amplified essential qualification pertaining to expnknce. . because the post was under the project 011 the protein q~ality·of ~illets, .. sorglrnm, wheat and either cereals concerned with studies on the nutri- tional quality of· food :grains. whereas Dr. Mehta has never. done any work nor published any literature in. the Jine of nutrition nor was he ever basically trained in .this line. lilthe .. counter-affidavit fried on behalf of rnspondent Nos. ),and 4 that.is Director General atid Secretary to the Government oflndia, !CAR and Director General · of !CAR, this averment was neither.· questione<l nor ccmli'overted nor .denied. Further the High Court upheld the slection and appoint~· F. ment of respondent: No: 6 Dr. Mehta hot.ding' that a5' the Selection Committee had power-to' relax· the essential qualification, the appoint- meht of br. Mehta was made after relaxing the essential qiialification. ·'""'. We find it difficult to appreciate that the. High Court shmiid uphold · an appoh1tment of a· person, to suit whose r.equirement, the ess.ential qualification was · amplified. by providing an irrelevant additional G amplification and yet who failed to qualify for tlie same by resorting· to the power of relaxation. And we are not satisfied that the second . Selection .Committee .had· the pawer to relax' essential qualification pertaining to experience . In .this <tn.nection, it is .ad.vantageous · to refer to the. counter-affidavi.t of respondent No. 4, the ·Director-. H : General. of !CAR, whe.rein he stated tha.t firsi essential qualification pertaining to educational attainment· was relaxable. He is silent as

P. K. IYER '" UNION (Desai., J.) 233

to the second essential qualification· pertaining to experience·. The A re.levant poriion may be extracted :

·"Doctorate in Bio-chemistry or Oganic Chemistry oi· · . Agdcultural Chemistry-relaxable to M.Sc. Degree or equiva- lent post-graduate qualifications in the case of capdidates . with exception.ally distinguished record of produ~tive · ·B research." ·

It is not suggested that· there was power. oT rel_axation with regard to second essential qualification. However, neither respondent. ·No. 6 nor respondent Nos. 2 and· 4 ever asserted· that but for power of relaxation claimed,. respondent No. 6 could ever be said to have satisfied the essential. qualificaiion pertaining lo experience. 'In. this c connection, we may'refer w a counter-affidavit on behalf of respondents . Nos. 3 .and 5 to 7 which ·included respondent No." 6. the party con' cerned. In the. counter-affidavit, ·there is an sphinx like silence with ' regard to the averm_e,;ts madein-para JO that respondent No. 6 Dr.. Mehta did not satisfy tlie essential q1ialification pertaining to experience. . Sub si/entio _an ad1nissio1i can. be spelt on behalf of respondent No ... 6 D t!~at he did not have requisite es~e11tial quali.ficatiu1~ a.s· to. experien1.:e .. .Therefore, the conclusion is inescapable that respo.ndent' No. 6 Dr·. Mehta did not satisfy the essential qualificaticn pertainirg to exVi~ience · even after the !CAR and. its affiliates and respondent No.' 4 amplified . the essential qualifications. · And 'we could not trace the source of · po~er if any to relax essential ·qualilkalio1i'.as to experience. There- E .fore; oi1 the face of it the s~lection of respondent No. 6 for the post of Senior Biochemist is utterly unsustainable. More so because· · there· were others who fulfill\:d all es~cntial qua!lflcatipn and one is · .left to· speculate the reasons which weighed with the · Selection Coin- . mittee 'to reject them and .to .select a person who did riot fulfil. the essential qualification foi such a: post as Sei1io1' Biochemist, claiming F non-existent pow'?r to relax the ,qualification'.·

Jn this co.ntext one more submission may be disposed of. It •

' • . was said thatlhe Committee consisted of experts and they were highly qualified persons who woµld be able to evaluate· and assess the relative merits of each of the candidate °before it and the. Court is least com-

. ... \ 0

. potent lo do so and therefore it-would bebnwise to substitute experts' decjsion by Courts'· de(isiOn. In .this connectioi1,. ·re\jance' Was placed on- Dr. M.C. Gupta&. Ors., v. Dr. A run Kumar Gupta & Ors.''' in which this _Court held as under ' H (1) [1979] 2 s.c.c . 339

p. 234