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

A ".When selection is made by the Commission aided a.nd advised by experts having technical experience and. · high academic qualifications in the specialist field, probing teaching/research experience ·in technical. subjects, the Coifris ·.should be slow to interfere with the opinion expressed by experts unless there are allegations of mala tides against B them. It would normally be prudent and safe for the courts to· ]eave the decision of academic. matters to expei·ts who· are more familiar with the problems they face than the • courts genera!ly. can be. Undoubtedly, even such a bod& if "I it were to contravene rules and regulations binding upon it. \---- the court in excerise of exfraordinary jurisdiction to enforce ( c rule of law, may _interfere in a·writ pe.tition under Art. 226." ' was urged that once it is conceded that as the power of selection It and appointment vests in the !CAR, the· Court should not usurp that· power merely because it-would have .chosen a different' person ·• as better qualified (See State ofBiharv; Dr. Asis Kumar Mukherjee 1" D Undoubiedly, the Court must look with respect upon the performance of duties by experts in the respective fields as bas been sa.id in Dr. M.C. Gupta's .case .. ·However, the task of ushering a society based on rule of la.t'' is entrusted to. this Court and it cannot abdicate its functions. Once it is lnost satisfiactorily established that the Selection Committee . . did not have the power to ·relax essential qualification pertaining to E experience, the entire process of selection of the 6th respondent was in contraven-tio.n of t)le established norms prescribed byadver tisement · and power of the, Selection Committee and procedure of fair and just selection and equality in the matter of pub lice mployment and to rectify ,_ resultant injustice and establ_ish constitutional ,value this C.~urt must ·interfere. Selection bf respondent No. 6 is contrary to rules and .F orders.and ni violation of prescribed norms of qualification. He was ineliibleg for the post• when selected. His selection and appointment would ·b~ required to be quashed and ·set aside.

The present position however is that the post of Senior. Bio- chemist has been abolished. Undoubtedly, respondent No.· 6 by undeserved benefit of improper selection has scored a march over his co1leagues in the ma tier of pay scales to ~hich be would not be .entitled. Petitioner Dr. Gupta was put in the scale of Rs. JJ00-1600 in 1978 while respondent No. 6.Dr. Mehta was.put in that scale in. 1980 that .is two years after the petitioner. By the . . illegal selection . respondent H (!) [1975) 2 S.C.R· 894

.. .. P. K. IYER v. UNfoN (Desai. J.) 235

No. 6 has reached the scale ·of Rs. 1~00-2250 while Dr. Gupta is in A the •cale of Rs. 1500-2000. Respondent No. 6 Dr. Mehta· is enjoying this utterly undeserved \Jenefit consequent. upon .his· unsus- tainable selection as Senior Biochemist:

Now that the post of Senior Biochemist is abolis)fed, how do we redress the wrong. At the hearil)g of this petition, it was suggested to ·the respondents .to put both Dr. Gupta and Dr. Raman .whose case. will be presently examined in t\ie scale of Rs 1800-2250 from '· the date respondent No. 6 Dr. Mehta has. been elevated to that scale,

-. That is the only way for securing justice to Dr .. Gupta and·he is entitled to it. · The second grievance of Dr. Gupta is that be was illegally removed from the membership of the Post-graduate Faculty by the c . Academic Council. Few relevanf facts in this connection are that Dr. G!ipta felt that he was .unjustly treated by bis s.uperiors by not allocat- ing students for Ph.D. to him and by not facilitating post-graduate · teaching. There is a .fong drawn-out correspondence in this behalf , which we consider unnecessary to refor to save and except the letter D ·dated May 30; 1970 which has been treated by the Academic Council · as a letter of resignation of Dr. Gupta from the membership of the _Faculty. By this letter pettioner Dr. Gupta informed. the Academic Council that even though he has been repeatedly assur~d that his grievance would be theroughly e~amined and full justice would be.done to him for the discriminalvn ·and victimisation to which he has been E

.. subjected in the m.atter of allotment of students .of 1968 and 1969 batches, nothing has been done in this behalf. He further states that he has been all along patiently waiting for the redressal of his grievance, yet justice has not been done· to him. He then states as". under: · · F "As such, after showing so much patience in the matter, I am sorry to decide that fshould resign from the membership of the Faculty in protest against such a treatment and aga\nst the disciiniination and victimization shown to me by the Head of the Division .in· the allotment of students of 1968 and 1969 batches and departmental candidates." G This letter was .placed before the meeting of the Academic Council convened on May 3, 19nchaired by respondent No. 4. Letter dated May 30, 1970 of the petitioner was placed on the agenda at . Item No. 17 .. In this connection, the Academic Council resolved H as·under: •

•

' SUPREME COURT REPORTS [1984] 2 S.C.R.

.A "Y~ur Jette; was c01~sideredby the Council at.its meeting '>-. held on "3rd May, 1971 when the· Council came to the ·un- ani.mous conclirnion that youyiere.noUnterestcd in ~ontinuing "-) as Faculty Member and hence the Council regrets tq utilize a your ser~ices as Faculty Member of the P.G. Schoo.I any ··more."-· B The callous and heartless attitude of th.e Academic .Council is shocking .. lt adds insult to injury .. Dr. _Gupta has been the victim ·Of unfair treatment because he raised a voice of dissent against certain c.laims made by the high-up in ICAR in the field of Research. Avoiding

- ,_,_ going .into t_he. details of it, this. resu.lted in Dr. ·Gupta. being denied ( c the allocation ·Of students. 'He did not act in a p1'ccipi_tatc ·manner .. · H.e· went on writing Jeiter after letter even .including to respondent No. 4 ·b.e.seeching him to look into the matter and to ren<\er justice to him: When everythirtg fell on deaf ears, out of exasperation be wrote letter dated May 30, 1970 in.which he stated that the only honou- 0

rable e.ourse left open io him was to· resign. rattier than suffer. The D Council siezed upon this opportunity to .gel rid of Dr. Gupta: In this connection, it is worthwhile to point. out paragraph 11.l in Chapter . Xl of the. Gajendragadkar Committee's report wherein the maj.or compl~ints regarding ·working conditions in the Divisions were listed as under ; . .

E · • "(i) The Head of the Division does not give Jacitities for work. He favo~rs those who ""l'k for l)im . . (ii) ·there is no academic atmosphere as there is no free_ dis-. · cµssioJ\ on.research projects and _res.ults obtained:

(iii) "Senior Scientists insert their names in research papers F even thol!gh they do.not do the acfoal work. ., (iv) Purchase of chei.n"icals, glassware _etc. take iuordinate delay.

(v) .Scientists· are not alJowed to. use certain equipments which are available in the Division or in 'the °Institute. .G For. e_xample,, the equipments available in the Division ' of Biochemistry. of IARJ. ate no.t shared by all the colleagues of the Division.. The Nuclear .Research Laboratdry has several .equipments which scientists of other Divisions normally_ cannpt use." B . . After.listing these complaints, the Committee gave its cornidered opinio_n as under : •

• P. K. IYER v. UJ'l!ON (Desai, J.) 237

11.2 · We feel that most of these complaints art genuin<' ai1d A they should k remedied. The working conditions for scientists should be made attractive so that a. scientists would be encouraged to engage himself in research rather than ·eng~ge himself in. unacademic aCtivities. So the conditions in a Division should be set right first." · (underliningours) B

The Committee proceeded to make numerous recommendaticm . to ameliorate. the situation. Jn. this co.ntext we would also like to . refer to paragraph I 3 at page l 52 of. the Report which reads as under:

"As more instances of allegatibns of uilscientiJ,ic attitudes, c behaviour. and practices in IARI, we ·cite the following.· These com(; from the submissions made by three .scientists ·o.f the Bio-chemistry Division of JARJ, Dr. T.S. Rarran chaUen-ges . the findings in the.Ph.D .. thesis of. Dr. . LS. Mehta, ~

a Bipchemist in, the Nuclear Resean:h Laboratory. Dr. Raman categorically asserts that certain data ccntain<d in D Dr. Meht;r's thesis "could not hr.ve been obtained by methcds he has. claimed to have. been used." Dr. Y.P. Gupta who appArently has himself worked. on ·the lysine content of different varities of wheat, states that in the half-yearly report for period ending October, 1968,.he· had.reported the lysine · content of Sonora-64 to be 3.26.%,- but that the Heed ofthe ·E Division deli.berately changed it to 2.26 % so that the Sharabati . Sonora might appear in a more favourable light. Be seriously

- disputes the data ori the protein · and lysine-content of Sharabati · Sonora published .by. Dr. Swaminath_an in · - the· November 1967 issue of the journal ;,Focd Industries'' .. . Dr. K.G. Sikka states that four varities. of Arhar (cajanus) .F . have been recently released which h'e finds contain certain. toxk ·substance causing blindness a.mong rats. Within the short time available to us, it has not been possible for us· to examine these allegations. We do not also think that it . would be a fruitful course for 'us to pursue .. It is obvious that these are very serious allegatons: Wheiher thay are G . substantiat.ed a careful .exairtaiion, the fact remains thnt there are many junior scientists in IARI who, rightly or wrongly, feel 'that they ·are not free to publish a. scientific'. · filiding because it doesnot suit somebody higher. up or t.hat .in fact unscientific data are being. ,passtd on to the H hrgher, a~thorities in_ retufn Of favOurs and promotiOns.

238 SUPREME COUJ\T. REPORTS [I 984] 2 s.c.R:.

A The existence of this feeling is most regretable because it creates the conditions for breeding of unscientific behaviour and practices _if they do not already .exist. Mere refutation ofthe allegations will not iherefore do." . . . br. Gupta's complaint .was then noted and that is the com- B plaint which awaits redressal. H clearly transpires that Dr. Gupta was hounded out ofthe Faculty_ membership and now the respondents try to hide this inconvenient fact by treating the cry oCagony in the letter dated May 30, 1970 as letter of resignation. Apart from being harsh, it is an unethical attitude on .the part of the !CAR. However, · at this s!age, we would record a statetment made by_ Mr. Lokur, c learned counsel appearing for ICAR and its affiliates before this Court on Ju.y 21, 1976 at the hearing of S.L.P. No. 2339/75preferred by petitioner. Dr. Gupta whic11' reads· as under:

'.'Mr. Lokur states that th·e respondent council would . . consider the question of taking back thepetitioner as a D · member of the Faci1lty."

After recording. this statement the special leave pet1llcn was rejected. It was hoped that the respondents would act to honour · the statement of their learned counsel. Now that the matter is being disposed of we direct the council to carry out. its statement made E before this Court within three months from the date from. today. .

Re: R.P. Nq.- 80/76 in S.L.P. 702/76 : . br. T.S. Raman filed the writ petition in the Delhi ·High Court challenging the selection · 7 and appointmeni of respondent No._ 6 as Senior Bio.chemist en aHthe . grofmds which were utged by Dr. Y.P. Gupfa in his writ petitcn. F· There is also an additional point in his favour in ihat even though the , first ·Selection Committee constituted· to select' a Senior Biochemist · -1 >. had directed that the second Selection Committee shou'd interview " -Dr. T.S. Raman along· with other candidates, no intimation was "nt to him about the date and time of the interview ·and he did not . have the benefit of the interview by the second Selection Committee which· recommended respondent· No. 6 Dr. Mehta for the. post of Senior Biochemist.· Dr. T.S. Raman questicr.<d th cc'rrcclr"' Hnd validity .of the selection of Dr. S.L. Mehfa; respondent No. 6 in Special Leave Petition 702/76 whch was heard and disposed of along with the . writ petition of Dr. Gupta and met with the same fate. Dr. Raman H preferred S.L.P. No. 702/76 which was dismis_sed by this Ccurt en . August' 30,. 1976. Thereafter, he filed Review Petition No~ 80/76

..

p, K. IYER~- UNION (Desai, J.) 239 • . which was directed to be heard in this group of petitions. The reasons A which found favour with us for reviewing the decision of this Court dismissing the S.L.P. No. 2339/75 preferred by Dr. Gupta and admitt- 'i ing it and disposing it on merits would mutatis mutandi.1' apply to the review· petition of Dr. T.S. Raman and we accordingly review the decision rejecting his special leave petition and grant special leave to ,appeal and procetd to dispose of the same on merits . B • Ordillarily Dr. Ramari should get the sari1e relief which Dr. Gupta is held entitled to, but certain facts were brought to cur notice which necessitate a consideraHon of Dr. Raman's case · slightly · differently. Before we prcicee.d to examine Dr. Raman's case, it · may .be noted that the High Court found fault with Dr. R~man in not · c • informing the concerned authority about the change in his address and therefore, if Dr. Raman did not receive·the intimaticn for inter' view, he should thank himself. This approacq dces not ccmmen(,I to us. Dr .. Raman was sti!J in the employment of the.Institute at the time when the Seco~d . Selection Committee · decided to interview candidates and in .view of ihe findings of the first Select[on Cvmmitt<;e, n Dr. Raman was entfrled ~s a matter of right to be called for interview. The High Court observed that Dr. Raman neither applied for the post nor appeared for the interview before the second Se!ecticn Ccm- mittce: This is begging the issue became the High Ccurt wl1olly overlooked the prcceedings of the first Selection Committee in which it was decided that without any fresh applicaticn from Dr. Raman, E he would be considered to be a candidate before the second Selection . Committee arid would be <:ailed for interview. There is a further co1ifession in the· observation of the High Court when it states that Dr. Gupta and .Dr. Raman were both at ihe relevant' time working in the _Biochemistry Department of the Institute and that Dr. Gupta appeared for the interview before the Second. Selection Committee F while Dr. Ram~n failed to do so and he cannot make a grievance about his own lapse. If Dr. Raman was at the relevant time a!fachd .to the Institute and was working with the Institute, we see no justi- . fication· for the ministerial side of the Institute not informing Dr. R 1man to a'ppear for interview. The lapse was on the part of the Selection Committee and the same cani10t be wished away. The · G . High Court was clearlv in error in observing that either Dr, Raman was not hopefui of getting the job. ot he had some other reasons fer not applying for the same and therefore his grievance cannot be entert~iried. This is clcarlv contrary to record: He qad applied e.arlier and was entitled to be called for interview as noted in the · H proceedings. "It was obligatorv upcn the fcccrd Sekcticn Ccrrmittee

•

. 240 SUPREME COURT REP.ORTS [1984] 2 s. c.R. ·

A to inform· Dr. Ra;nan ti:l appear. fo( .the interview and· aaequate steps · sh.ould have 'qoe1naken to give. the intimation because he was attached . to the Tnstitute and was in active. service of the Tnstitute and intimation. to tiim would not requirn anv herculean effort on the part of th~ Committee.· If'the matter wece Id rest here, we. would have unhesta- 'II . tingly given ·the same reli~f which Dr. G'upta is held entitled tc;, but B. certain additional .facts were put on re.cord which ·necessitate a diff- .1 erent, np.proach. ··

· lt maf he recalled that since· the re.vision. of tl1e icale attached to •fhe post of Professo; tci Rs, 1100-1600, further promotion was to· ·the ·.scale of Rs. 1500-2000 and the next promotional stage ·was • c R>. 1800-2250. It no\v transpires that Dr~ Raman was made a member of 'f\gricu!tural Resea1'.ch Science .(ARS) with effect from o:ctober 2, · 1975 and he was ·put in .the sba 1e .S-2 Rs. 1100-1600 from the same· date .. Rule 19 of the Agricultural Research Service Rules pi'ovided for promJtion. from one grade to next higher g1ade on the basis of y assessrfient of performance by Agrirnltural Scientific Recruitment Board (ASRB).. The screening for the .purpose ·of. promotion to· higher gr:ide is pcri:O.dically undeFtake11'every. year as far.as practicable sJincwh~re in Janu~1ry or s·o_on thGr~after. ··sucl11 a Screening was' . undertaken on October 26, 1977 by the A~sessment Committee appoiiit- t~a bv the Chairman of ASRB. The period under. Jssessment was upto ~nd in2iusiw of December 31, 1915. Unfortunately, ·or. Rama~ ·~· E w.ts not recommended by the Committee for 'pro1110tion to S-3 grade i.e, .!ls: 1500,2000; but instead of promotion .lo the higl)ergrado, the Committee recolirn1ended that two .advance incrcme.nts te granted to Dr. Raman which recommendation was ca.rried out with effect from July I, 1976: Against the assessment by the Assessment Com- . ·mitteo, Dr. Roman made representation e1aiming that ,he was eligible for promotion to ,S,3 .gra.de. · This represcntaiirn ""'s .rejcc1crl. ·.by the· Director General concurring with the sssessir.cnt inrck by the Asscssm~nf · Cotnrnitti::e· which. did 1~·ot find .Dr. Ran1an ~t for p'ron10~ ·tion· to S-3 grad~: In 197.8 ·or. R·anian was requ~stcd to. g·i:;e sup- plementary infor~ation ·about. the research \vork und.ertcken by him for assessment for ·promotion.1o S-3 grade. In. the. meeting of the Assessment Cori1mittee held on. May· 28, 1980,. the i.nformaticn supplied .bY Dr. Raman· wasJ1eldt~ ·be insufficient and this. can be · cul!ed· out· from the observation'. of th~ Commit.tee that Dr. Ramai1 · "co.uld ri0t be a.ssessed for want. of material and CCRs for alI the years'. The case .of Dr. Ram.an for promotion to S-3 ·.grade again came up before the Assessment Committee which met on April. 22 .. 1982 and the Committee noted its' de~ision con'V(ycd by 'the woi·ds

•·.

P. K. IYER v. UNION (Desai, 1.) 241

'no change'. Now these assessments are not questioned in the writ petition filed by Dr. Raman and these are later developments and therefore, it would be difficult to give Dr. Raman any benefit at this stage wholly ignoring the later developments

The learned counsel for· the ICAR after succintly pointing out the fact• hereinbefore mentioned, submitted that it is not possible to accord same treatment to Dr. Raman on par with Dr. Gupta wholly ignoring later developments. He however frankly and fairly stated that if the Court directs, the InstitUte has no objection to appointing afresh Committee for making a fresh assessment for ascertaining the suitability of.Dr. Raman for promotion to S-3 grade on the basis of the material regarding work done :ind achievements made by h;m c for the period commencing from.becember 31, 1976 npto· the period he bas been assessed or uptil now. It was further submitted that if the special Assessment Committee which may be set up to examine the case of Dr. Raman recommends his promotion to S) grade, the same can be given to him with effect from Jst of July of the year ( following the year upto which he submits his wofk done and other D achievements. Dr. Raman is in the.grade of Rs. I 100-1600 since 1975. A period of 8 years has rolled by. He is undoubtedly a highly qualified person. It is equally true that he bas been asses'sed thrice and found wanting for promotion to the higher grade. However, we appreciate the fair attitude adopted by the learned counsel in this behalf and accordingly direct that the Institute shall set up a special AsscSfment E Committee to assess the suitability of Dr. Raman for prcmotion to S-3 grade by examining bis work from 1976 till today. This may be done within a period of three months from today.

Except for what we have recommended in the foregoing para- graph, it is not possible to give Dr. Raman· any other relief which F Dr. Raman would have been held entitled on the ground that it was ·an error of the second Selection Committee not to have interviewed him or not to have considered .his case in absentia as directed b'i the. first se.lection Committee. Though the lapse was on the part of the respondents, the resultant situatio'n has become irremediable and irreversible. Therefore, with the observations and directions made G in the foregoing paragraph, the appeal arising from the special leave petition of Dr. Raman fails and is dismissed.

Re: C.A. No. 1043/81 : Appellant Om Prakash Khauduri after obtainirlg post-graduate degree in the discipline 'Opcratirnal H Research' iri 1973-74 joined the post of Senior Computer in Indian

p. 242

A Agricultiiral Statistics Institute, an affiliate of ICAR on December 4,

1975. The Agricultural Scientists Recruitment Board ('ASRB' for short) has been constituted by the ICAR with the approval of the Government of India as a recruiting agency for the various posts in Agricultural Research Service (ARS' for short). ASRB issued an advertisement intimating that it would hold competitive public B 'examination in 1978 to recruit scientists to be appointed under various disciplines of 'ARS'. For the information of the intending candi- dates, ASRB made available the rules framed by the JCAR on August 19, 1977 ('1977 Rules' for short) setting out the terms and conditions for admission to the competitive examination and the criteria fer .,, selection of successful candidates etc. The competitive examination c was to consist of written tesfhaving '600 marks followed by a viva voce test carrying 100. marks. The final selection was to be done according to the merit list, which would be arranged by the ASRB in the order of 1mrit in each category as disclosed by the aggregate m>rks f\nally awarded to each candidate as per Rule 14 of 1977 Rules. In response to the advertisement, petitioner applied on Oct. 26, 1977 ) D for being admitted to the examination and his application was accepted and potitioner appeared in the written test. He secured 364 marks out of 600 in the written te'st which qualified him for being called [or viva voce test. 'Tn all 20 candidates inciuding the petitioner were selected for viva voce test. After the viva voce test, the ASRB dec- lared the names of 13 candidates as successful and finally selected them for ARS in the discipline 'Agricultural Statistics'. The petitioner was not am.ong the successful candidates. In fact, nearly 21 vacancies were left unfilled by the ASRB. Petitioner contends that ASRB contravened Rules 13 and -14 by prescribing minimum marks for qualifying at viva voce test at 40 out of 100 and those who did not secure 40 marks, even if on aggregate of the marks were eligible for being included in the merit list, such .candidates were wrongly exclu- ded from the merit list. Petitioner further conteds that the merit list prepared in contravention of Rules 13 and 14 and the resultant '1 sefoetion based on such illegal and invalid merit list is liable to be q uashcd and a mandamus be issued directing the respondents to prepare a fresh merit list in accorda11ce with Rules 13 and 14. The G p-;titioner made variou~ representations and he was satif:ficd that

I the ASRB had accepted the same method cif preparir g the .rr,erit list as the UPSC which followed the. method of arranging the merit list according to the aggregate marks obtained at the writtrn test and viva vocc test and if the merit list was prepared according to that method, he was eligible for being selected for one'Of the vacancies in ARS. Petitioner continued his 'search for justice and ultimately'

P. IC. IYER v. UNION (Desai, J.) 243

he filed a Writ Petition No. 553/80 in the High Court ·of Delhi for the above mentioned reliefs. A Division Bench of the High Court held that the law as it then stood was clear that a Society registered under the Societies Registration Act was not other authority within meaning of the expression under Art. 12 and that as ICAR is a society, writ jurisdiction cannot be invoked against it and on this short ground writ petition filed by the petitioner was rejected in limine. Hence .B. ). this appeal by special leave.

The narrow question that falJs to be determined in this appeal is whether under the relevant rules ASRB can prescribe minimum qualifying marks which a candidate µrnst obtain at the viva voce test before his name can be included in the merit list on the basis c of aggregate marks obtained by him ·as required by Rule 14 of the · 1977 Rules? · . .

ASRB has been set up as a separate and independent agency for recruiting personnel for IASRT, an affiliate of !CAR. A com- petitive examination was held in 1978 to recruit scientists to be D appointed under various disciplines of ARS including the discipline 'Agriculture Scientists'. There were 34 vacancies in this discipline. Selection was to be made by competitive examination comprising written test carrying 600 marks in the aggregate and viva voce test carrying JOO marks. The written test is held first and those who qualify in the written test alone are eligible to be called for viva vcce E

- ~est. It is alleged and not controverted that ASRB prescribed · that anyone to be eligible for being admitted in the merit list on the basis of aggregate marks should also have the additional qualification of atleast obtaining 40 marks in the viva voce test. -It is seriously '\-- contended that this additional qualification <lo!'s not have the authority f of law, and that it was arbitrarily devised without any rationale behind it.

The relevant rules are Rules 13 and 14 of the 1977 Rules, which may be extracted :

"13. Candidates who obtain such minimum marks in the the written examination as may be fixed by the Board in their discretion shall be summoned by them for viva voce.

14. After the examination, the candidates will be arranged H· by the Board in the order of merit in each category

244 SUPREME COURT REPORTS [1984] 2 s.c,R.

A (professional subject-wise) as disclosed by the aggregate marks finally awarded to such candidate and such · candidates as are found by the Board to be qualified by the examination shail be recommended for appoint- ment upto the number of unreserved vacancies decided to be fiiled on the result of the examination." B Mr. Ramchandran, learned counsel for the petitioner contrndcd that Rule l3 does not. envisage obtaining of minimum marks at the ~, viva voce test even tho.ugh it contemplates obtaining minimum marks at the written test so as to be eligible for being called for viva voce ~ ·test. It was.further urged that_Rule 14 specified the manner in which c merit list is to be arranged. R\1le 14 provides that after both written and viva voce tests are held, the candidates will be arranged by the Board in the order of merit in each category (Professional subjectwiee) as disclosed by the aggregate I]1arks finally awarded to each can- ,._ didate and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination. On a combined reading of Rules 13 and 14, two things emerge. It is open to the Board to prescribe minimum marks which the candidates must obtain at the written test before becoming eligible for viv~ .voce test. After the candidate obtains ';..._, minimum marks or more al \he written test and he becomes eligible E for being called for viva voce test, he- has to appear at the viva voce test. Neither Rule 13 nor Rule 14 nor any other rule enables thy ASRB to prescribe minimum qualifying marks to be obtained by the . · - candidate at the viva voce test. On the contrary, the language of Rule 14 clearly negatives any such power in the ASRB when it pro- vides that after the written test if the candidate has obtained minimum -1 F marks, he is eligible for being called for viva voce test and the final l . merit list would be drawn up according to the aggergate of marks obtained by the candidate in written test 'plus viva voce examinatiou. The additional qualification which ASRB prescribed to itself namely, that the candidate must have a further qualification of obtaining mil).imum marks in the viva voce test does not find place in Rules 13 G and 14, itamounts virtua\1~ to a modification of the Rules. By necessary inference, there was no such power in the ASRB to add· ).. to the· required qualifications. If such power is claimed, it" has to be explicit and cannot be .read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. It howe¥er does not appear in the facts of the case before us that because· of an allocation of JOO marks for

p. K. IYER v. UNION (Desai, J.) . 245

"iva voce test, the result has been unduly affected. We ·say so for want of adequate material on the record. In this background we are not inclined to hold that 100 marks for viva voce test was unduly high compared to 600 marks allocated for the written. test. But the • ASRB in prescribing minimum 40 marks for being qualified for viva · voce test contravened Rule 14 inasmuch as there was no such power in the ASRB to prescribe this additional qualification, and this prescription of an impermissible additional qualification has'a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidate at written ~ test plus viva voce test. Once an additional qualification of cbtaining I minimum marks at the viva voce test iSadhered to, a candidate who may figure high-up in the merit list was 'likely to be rejected cin the ground c that he has not obtained minimum qualifying marks at viva Voce test. To illustrate, a candidate who has obtain<d 400 marks at the written test and obtained 38 marks, at the viva voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the g'round that he has not obtained qualifying marks at viva voce test. This D was impermissible and contrary to Rnles .and the merit list prepared in contravention of the Rules cannot be sustained . • It may at this stage be pointed out that the Union Public Service Commission has framed its rules relating to competitive examination held by it in 1978 to recruit personnel to Indian Economic Service and E

- y the Indian Statisical Service. Rule 12 and 13 are relevant for this purpose. Briefly, it may be stat~d that rule 12 authorises the Com- mission to prescribe minimum qualifying marks for the written· examination to be fixed by the Commission at its discretion. It further ·appears that those. who obtain the minimu~ qualifying marks will be eligible for being called for viva voee test. Rule 13 F ' provides that after the examination i.e. both the written test aµd the viva voce test, the candidates will be arranged by ·the Commission in the order of merit as disclosed by the aggregate marks finally awar- ' ded to each candidate and in that order so many candidates as are found by the Commission to be qualified by the examination shall be recommended for appointment upto the number of unreserved G vacanc'es decided to be filled on the. result of the examination. There is a proviso to this rule which is imm•terial. It appears that when the petitioner drew attention of the ICAR that in prescribing the additional qualification of minimum. marks to be obtained by the candidates ·at the viva' voce test and not preparing the merit list accor-' H ding to the aggregate of marks by excludirtg those candidates who

246 SUPREME COURT REPORTS (1984] 2 .S.C.R.

A ha<l not obtained minimum qualifying marks at the viva voce test! it contravened Rules 13 and 14 and more particularly Rule .I 4. the ICAR referred the matter to UPSC and enquired about the procedure followed by it. There is an admission in the counter-affidavit of Mrs. Rathi Vinay Jha. Secretary, ICAR and Deputv Secretary, .. I '' Government of India, Department of ·Agricultural . Research and B Education, Ministry of .Agriculture and Rural Reconstruction that after the UPSC intimated its procedure: the matter was placed before the Committee of ARS at its meeting held on July 11, 1979. Sub- sequently, the President, ICAR approved the procedure followed ·by the UPSC and recommended by the Committee of ARS, and the revised procedure was adopted for the examination 'held in c January,· 1981. The re,ised procedure eliminates obtaining of mini- mum quali(ying maiks at viva voce test. May be that the ICAR has ' corrected itself but what about the da_mage done to the petitioner and those similarly situated.

It is not possible at this late stage to reject the entire selection on the ground that the ASRB committed a serious legal error in prescribing minimum qualifying marks at the ·viva voce test and drawing up merit list on this impermissible method. It would be equally improper to disturb the selection of those who had been selected and appointed way back in 1978. Even though -it is true that a serious legal error has been committed in drawing up the merit list, at this late stage, it would be unwise to reject the entire selection, disturbing those who are a'lready selected and may have put in service ·of not less than 5 years. But it is crystal clear that 21 _vacancies were kept unfilled. It is not made clear whether the petitioner has been selected at apy later selection. If he is selected at the later selection, nothing further is required to be done: But if he is not selected, - F the ASRB may draw the merit list in respect of remaining 21 unlilkd vacancies from amongst •those who were called for viva voce test and who were not selected because some of them like petitioner did not obtained. minimqm qualifving marks at viva· voce test. The merit list may be drawn in respect of those who though called for viva voce did not qualify for being put in the merit, ignoring the • G concept of minimum qualifying marks a merit list in respect of them be drawn up on the basis of aggregate marks. If there is a vacancy, and if the petitioner comes within the zone of selection on the· aggregate of marks obtained by him, his case shall be considered for appointment prospectively, and not retrospectively. This is the only relief which we are inclined to grant to the petitioner.

•

p, K. IYER v . UNION (Desai, J.) 247

That is the end of the journey. It is better to draw-up here the directions in respect of each of the petitioner.

In Writ Petition No. 587/75, the !CAR is directed on· their. concession and by a mandamus of this Court to put the three petitioners in the revised scale of Rs. 1100-1600 sanctioned for the post of Profossor effective from the day. when others selected as P1 ofrssors. in sister disciplines were awarded the revised scale of Rs. 1100-1600.

In Special Leave Petition No. 2339/75, the !CAR is directed bv a mandamus of this Court to a ward to Dr. Y. P. Gupta the s~ak ' of Rs. 1800-2250 from the date the same was given to respondent No. 6 Dr. S.L. Mehta. The arrears payable pursuant to the direction c shall be paid within 3 months from today.

Further the !CAR is directed to cam out the statement made by its learned counsol Mr. Lokur of taking back Dr. Y.P. Gupta as a member of the Faculty of post-graduate school of !ARI within a poricld ·or 3 months from .today. D fn S.L.P. No. 702/76, it is directed on the concession of the learned counsel for the !CAR that a special Assessment Committee may be set up to examine the case of Dr. T.S. Raman for promotion to S-3 grade' \Vithin a ·per;od ·of 3 months.• Dr. T:s. Ra1nan is not entitled· to any further relief in his special leave petition. E

Jn C.A. 1043/81, the ICAR and ASRB arc directed to prepare

- ·the 1nerit list in respect of those candidates who were called for viva voce test, but \vere 11ot included in the n1crit list on the aggregate of m1rks obtained by them as directed hercjn and if there is a vacancv and the appellant/petitione;. comes within the zone of selection h~ F shall be appointed to one such vacancy. The appointn1cnt would be prospoctive and would be 'effective from the date of the appoint- ment but this is subject to the condition that if the appellant/petitioner ' is already selected at a later selectic•n, nothing inore is required to be done. G • We order accordingly. The respondent shall pny the costs of the petitioners in each petition.

N.V.K. Appeals & Petitions allowed. iI