(Prayer: Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari calling for the records of the eighth respondent pertaining to the order dated 27.04.2018 passed in M.A.No.310/00228/2018 in O.A.No.310/00523/2018 and quash the same.)
1. The petitioners have filed this writ petition for a direction to set aside the order dated 27.04.2018 passed by the eighth respondent in M.A.No.310/00228/2018 in O.A.No.310/00523/2018, vacating the interim order of status quo already granted by the Tribunal on 20.04.2018.
2. It is stated by the petitioners in the affidavit filed in support of this writ petition as under:
(i) Jawaharlal Institute of Post Graduate Medical Education & Research ('JIPMER' in short), is one of the premier medical schools in India and it imparts undergraduate and postgraduate medical education in various courses and has a working hospital that provides inexpensive medical care to a large number of patients. JIPMER is an institute of national importance and is under the direct administrative control of Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India.
(ii) As per Rule 8(2) of the Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry Rules, 2008 ('JIPMER Rules' in short), the appointment to the post of Director of JIPMER has to be made by the institute with the approval of the third respondent. It is stated by the petitioners that in the past years, a Notification was issued by the institute calling for applications for the post of Director, JIPMER and after scrutiny, candidates have been selected and appointed by the institute. The term of the previous incumbent Director of JIPMER expired on 23.03.2018. Hence, a Notification was issued in No.Admin.I(29)/2017 dated 18.11.2017 calling for applications to the post of Director, JIPMER and as per the said Notification, the qualification required for the said post are (i)A high postgraduate qualification in Medicine or Surgery or Public Health and their branches; (ii)Teaching and, or research experience of not less than ten years;
(iii) Twenty five years standing in the profession and (iv)Extensive practical and administrative experience in the field of medical relief, medical research, medical education or Public Health Organisation and adequate experience of running an important scientific educational institution either as its Head or Head of Department. (iii)The second respondent was appointed as the authority under the above said Notification to receive the applications. The last date of submitting applications was 03.01.2018 till 4.30 p.m. Accordingly, all the petitioners herein made their applications to the post of Director in the prescribed format.
(iv) According to the petitioners, they are fully qualified as per the Notification dated 18.11.2017. However, it appears that the fourth respondent has devised a scheme to ensure that one Dr.V.S.Negi (fifth respondent herein), a favourite of the fourth respondent gets elected as the Director. Accordingly, the fourth respondent, who recruited the scrutinising authority, viz.the second respondent into JIPMER in the first place, directed the second respondent to impose a condition that the candidates applying for the post of Director must send their articles / publications, published in an American Indexing Service called as 'PubMed'. Accordingly, the second respondent sent separate e-mails to the petitioners herein to that effect, on 12.02.2017. It is stated by the petitioners that the said condition is totally illegal since the Notification dated 18.11.2017 does not impose any condition / restriction on the indexing service in which the articles are published. It is stated by the petitioners that the said condition was imposed only because the fifth respondent, whom the third and fourth respondents want to be appoint as Director, has a lot of publications in PubMed whereas the other petitioners, who are all senior members of the JIPMER faculty, and far senior to the fifth respondent, have publications only in other indices.
(v) Apart from this, the second respondent has constituted a 'Screening Committee' comprising of four members to take policy decisions pertaining to the selection process for posts such as Director. It is specifically stated that constituting such Screening Committee is contrary to the Notification dated 18.11.2017 which does not vest such a power on the second respondent and further, the second respondent has no authority even under the Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry Act, 2008 ('JIPMER Act' in short) or the Rules framed thereunder to constitute such a Committee for the selection of Director. It is further stated that the first respondent-institute alone is empowered to take policy decisions pertaining to the selection process for posts such as Director and hence the constitution of the Screening Committee by the second respondent is unilateral, as it has not been formed obtaining the approval of the Governing Body of the first respondent-Institute. Further, pursuant to a letter addressed by the second respondent, the third respondent, vide letter dated 05.02.2018, constituted a committee by name 'Search-cum-Selection Committee' comprising of a Chairman and three members. The second respondent has invited the constitution of the said Committee by the third respondent, but as per the JIPMER Rules, for the appointment of the Director of JIPMER, the Central Government is only an Appellate Authority and the institute is the appointing authority and hence, the third respondent has no authority in law to constitute such a 'Search-cum-Selection Committee'.
(vi) The petitioners made a joint representation to the third respondent on 07.03.2018 highlighting the irregularities committed by the second and fourth respondents in the selection process and the same was not considered. Hence, they filed a writ petition before this Court in W.P.No.5690 of 2018 and vide order dated 13.03.2018, this Court granted an order of status quo. Since there was a preliminary objection as to the maintainability of the writ petition, the same was withdrawn, and liberty was granted to approach the Central Administrative Tribunal.
(vii) Accordingly an application in O.A.No.523 of 2018 was filed before the Central Administrative Tribunal, along with a miscellaneous application in M.A.No.228 of 2018. By order dated 20.04.2018, the Tribunal had passed an order of status quo, directing the matter to be posted on 24.04.2018. Thereafter, when the matter came up before the Tribunal on 27.04.2018, the interim order of status quo was vacated directing the matter to be posted for final disposal on 11.07.2018.
3. Challenging the said order dated 27.04.2018 vacating the interim order, the petitioners have come up with this writ petition.
4. Mr.P.Wilson, learned senior counsel appearing for the petitioners has submitted that the Tribunal ought not to have permitted the respondents to go ahead with the interview when the very constitution of the Screening Committee by the second respondent and consequently the marks awarded by them and the entire process followed, are ultra vires of the JIPMER Act and JIPMER Rules and the Notification dated 18.11.2017 issued by the first respondent-institute. He contended that the Tribunal has not appreciated that the third respondent-Ministry has no powers under the JIPMER Act to form a Selection Committee or usurp the powers as regards the selection of Director which is solely vested with the first respondent-institute. When Section 11 of the JIPMER Act provides that the appointment for the post of Director has to be made by the first respondent-institute only, the third respondent cannot usurp the said power for selection of the Director. The Tribunal has erred in not appreciating that the power of the Screening Committee to carry out initial assessment itself is ultra vires of the Notification dated 18.11.2017. He added that even as per the records produced before the Tribunal, it is seen that no transparent and objective methodology of criteria was followed by the Screening Committee while selecting candidates and recommending the same to the Selection Committee. Thus, he submitted that the appointment of Screening Committee by the second respondent, Search-cum-Selection Committee by the third respondent and the process followed by the second respondent in short-listing the candidates for appointment to the post of Director, JIPMER are illegal, arbitrary and unreasonable and cannot be countenanced in law, and the Tribunal has not taken these aspects into consideration, while vacating the interim order.
5. The learned senior counsel for the petitioners relied upon the decision of the Hon'ble Supreme Court in Union of India v. Ashok Kumar Aggarwal, reported in (2013) 16 SCC 147, in support of his contention that the competent authority cannot issue orders / office memorandum / executive instructions in contravention of statutory rules.
6. The learned Additional Solicitor General of India appearing for the respondents 1, 2 and 7 has submitted that the second respondent has not appointed any persons and he acted only as a forwarding agent, by forwarding the names of the incumbents for the post of Director. Further, the second respondent had already got retired from service and he has nothing to do in the matter. He further added that the recruitment process has been done only in accordance with the JIPMER Act and JIPMER Rules and not otherwise. Added further the counsel that the members appointed in the Search-cum-Selection Committee are not outside persons and the said Committee has been formed only by qualified and competent persons having prowess expertise in the subject, duly constituted as per the JIPMER Rules. Stating so, he submitted that the writ petition has to be dismissed in view of the fact that the post of Director is being kept vacant for many years, due to the pending litigation before the Tribunal and before this Court.
7. The learned counsel appearing for the respondents 3 and 6 adopted the arguments made by the learned Additional Solicitor General of India.
8. The learned senior counsel appearing for the fifth respondent has submitted that this writ petition has been filed only against the vacation of interim order by the Tribunal and hence the Tribunal has to dispose of the matter in its entirety. He submitted that the fifth respondent also holds other responsible positions in JIPMER. He is the Faculty (Vice Dean) Academics and has also carried the responsibilities of full-fledged Dean Academics and Dean Research for long periods of time in the absence of the designated Deans. He has been instrumental in starting many new undergraduate, postgraduate and postdoctoral courses at JIPMER and in addition, he serves on many national, regional and institutional committees relating to technical and general administration aspects of Government administered institutes. He is a member of the Medical Council of India's core Committee on development of curriculum for 'Clinical Immunology'. He has been the Program Director for 12 years for administration of a number of international collaborations between Government of India and Governments of France and Germany. The fifth respondent has received many fellowships and awards. The fifth respondent fulfilled the eligibility criteria for applying to the post of Director-JIPMER as laid down in the Notification dated 18.11.2017. Considering the expertise, skills, clinical research and administrative experience in the field of medicine and his outstanding contribution to patient care, teaching / training and research, the fifth respondent, besides being eligible, is also highly meritorious and worthy of selection to the post of Director, JIPMER. He further submitted that the stand of the learned senior counsel for the petitioners that the fifth respondent has publications only in PubMed/Medline is not correct. He submitted that the fifth respondent has publications not only in PubMed/Medline indexed journals, but also in journals indexed by other search engines like Scopus, Embase, Index Medicus, Index Copernicus and Biological Abstracts etc. Stating so, he prayed for dismissal of the writ petition on the ground that it is premature.
9. Heard the learned counsel on either side and perused the materials available on record.
10. As per the submission of the learned senior counsel appearing for the petitioners, as per Rule 8(2) of the JIPMER Rules, 2008, appointment to the post of Director has to be made by the first respondent-institute after obtaining the prior approval of the third respondent. The learned senior counsel submitted that the members of the institute as contemplated under Section 5(1) of the JIPMER Act, have to sit together and then have to take a decision as regards the appointment of Director. In other words, what is being stated by the learned counsel is that all the persons as named in Section 5(1) of the JIPMER Act, should participate in the process of selection. Since it was found to be an ordeal one, and it required only four persons including the Chairman, a decision has been taken to constitute the Searchcum-Selection Committee having four persons in consonance with the JIPMER Rules. The Chairman of the Committee is the Secretary to Government, Health and Family Welfare Department, Government of India. One of the three members is the Vice Chancellor, Puducherry University. Another member is the Director of All India Institute of Medical Sciences (AIIMS). The Director of Post Graduate Institute of Medical Education and Research, Chandigarh is also a member. This Committee has been framed only as per the JIPMER Rules. It is not necessary that all the persons as named in Section 5(1) of the JIPMER Act, should participate in the process of selection. Even as per Section 5(1)(j) of the JIPMER Act, four representatives of the medical faculties of Indian Universities can be nominated by the Central Government in such manner as may be prescribed. Thus, the constitution of those four persons cannot be treated as one against the Act itself.
11. It is the stand of the learned senior counsel appearing for the petitioners that as per Section 11 of the JIPMER Act, there shall be a Chief Executive Officer of the Institute who shall be designated as the Director of the institute and shall, subject to such rules as may be prescribed, be appointed by the Institute, provided that the first Director of the Institute shall be appointed by the Central Government. In this respect, the grievance of the learned senior counsel is that the second respondent, who is the Deputy Director (Administration), cannot constitute the screening committee as it is against the provisions of JIPMER Act and JIPMER Rules. In this regard, the submission of the learned Additional Solicitor General of India is that the second respondent has acted only as a forwarding agent by collecting and forwarding the applications as per the JIPMER Rules, and hence the approach adopted by the learned senior counsel for the petitioners in this respect, is without any basis.
12. The purpose of the impugned Notification is to see that meritorious candidates are selected and appointed to the post of Director of the institute. As per Rule 8 of the JIPMER Rules, the Central Government has got ample powers to constitute a Selection Committee in order to select the meritorious candidates.
13. The learned Additional Solicitor General of India has also submitted that out of the five petitioners herein, two persons have already participated in the selection process, appeared before the Committee and also participated in the interview. On the one hand, they have participated in the selection process and on the other hand, they have filed this writ petition challenging the entire process. He also categorically stated that the persons stated in the impugned Notification have powers to appoint the Director and they are not in contrary to the JIPMER Act or Rules.
14. We have perused the judgment of the Hon'ble Supreme Court in Union of India v. Ashok Kumar Aggarwal, reported in (2013) 16 SCC 147, which has been relied upon by the learned senior counsel appearing for the petitioners, contending that the competent authority cannot issue orders / office memorandum / executive instructions in contravention of statutory rules. In the present case, the Screening Committee as well as the Search-cumSelection Committee have been constituted only as per the JIPMER Rules. Thus the contention put forth by the learned senior counsel for the petitioners that the constitution of the said Committees are illegal, relying upon the above judgment of the Hon'ble Supreme Court, does not hold any water.
15. The Search-cum-Selection Committee was formed in order to find out the suitable candidates to lead the JIPMER. Further, it is seen that the Government of India, Ministry of Health and Family Welfare, INI.II Section has addressed a letter to the Deputy Director (Admn.), JIPMER, Puducherry, dated 05.02.2018, in response to their letter dated 30.11.2017, that the Search-cum-Selection Committee has been approved by the DoPT (Department of Personnel and Training) vide their letter No.SC-14017/2/2018-Estt. (RR) dated 31.01.2018. Thus, it is clear that the said Committee has been formed only after obtaining the approval of the DoPT. Hence, the action of the second respondent is not contrary to the Rules and it is only supplementary to the Rules.
16. At this juncture, it would be appropriate to refer to the judgment of the Hon'ble Supreme Court in Sant Ram v. State of Rajasthan, reported in AIR 1967 Supreme Court 1910, wherein it has been held as under:
'(7) We proceed to consider the next contention of Mr. N.C.Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
(8) In B.N.Nagarajan v. State of Mysore, AIR 1966 SC 1942, it was pointed out by this Court that it is not obligatory under the proviso to Art.309 of the Constitution to make rules of recruitment, etc., before a service can be constituted or a post created or filled, and, secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of Sch. 7, List II. Entry 41, State Public Services, and there is nothing in the terms of Art.309 of the Constitution which abridges the power of the executive to act under Art.162 of the Constitution without a law. A similar view was taken by this Court in T.Cajee v. U.Jormonik Siem, 1961-1 SCR 750=(AIR 1961 SC 276) where Wanchoo,J., as he then was, who delivered judgment on behalf of the majority, observed as follows at pp. 762-764 of the Report (SCR)=(at p.281 of AIR):
"The High Court has taken the view that the appointment and succession of a Siem was not an administrative function of the District Council and that the District Council could only act by making a law with the assent of the Governor so far as the appointment and removal of a Siem was concerned. In this connection, the High Court relied on para. 3(1)(g) of the Schedule, which lays down that the District Council shall have the power to make laws with respect to the appointment and succession of Chiefs and Headmen. The High Court seems to be of the view that until such a law is made there could be no power of appointment of a Chief or Siem like the respondent and in consequence there would be no power of removal either. With respect, it seems to us that the High Court has read far more into para. 3(1)(g) than is justified by its language. Paragraph 3(1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws. Under para. 3(1)(g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them. But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect..........
... ... ...Further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollary. The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under para 19(1)(b) or till the District Council passed laws under para 3(1)(g). The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carrying on the administration. Doubtless when regulations are made under para. 19(1)(b) or laws are passed under para 3(1) with respect to the appointment or removal of the personnel of the administration, the administrative authorities would be bound to follow the regulations so made or the laws so passed. But from this it does not follow that till the regulations were made or the laws were passed, there could be no appointment or dismissal of the personnel of the administration. In our opinion, the authorities concerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the Sixth Schedule. The view therefore taken by the High Court that there could be no appointment or removal by the District Council without a law having been first passed in that behalf under para 3(1)(g) cannot be sustained."
(9)We pass on to consider the next contention of Mr. N.C. Chatterjee that if the executive Government is held to have power to make appointments and lay down conditions of service without making rules in that behalf under the proviso to Art.309, there will be a violation of Arts. 14 and 16 because the appointments would be arbitrary and capricious. In our view, there is no substance in this contention of the petitioner. If the State of Rajasthan had considered the case of the petitioner along with the other eligible candidates before appointments to the selection posts there would be no breach of the provisions of Arts. 14 and 16 of the Constitution because everyone who was eligible in view of the conditions of service and was entitled to consideration was actually considered before promotion to those selection posts was actually made. It was said by Mr.C.B.Agarwala on behalf of the respondents that an objective evaluation of the merit of the officers is made each year and promotion is made on scrutiny of the record- sheets dealing with the competence, efficiency and experience of the officers concerned. In the present case, there is no specific allegation by the petitioner in the writ petition that his case was not considered along with respondents 3 & 4 at the time of promotion to the posts of Deputy Inspector General of Police in 1955 or to the rank of Inspector General of Police or Additional Inspector General of Police in 1966. There was, however, a vague suggestion made by the petitioner in paragraph 68 of his rejoinder petition dated July 17, 1967 that "the State Government could not have possibly considered my case, as they considered and even in this counter-affidavit consider Shri Hanuman Sharma and Sri Sultan Singh senior to me by the new type of seniority they have invented for their benefit". Even though there is no specific allegation by the petitioner that there was no consideration of his case, respondent No. 1 has definitely asserted in paragraphs 23, 25, 40 and 44 of the counter-affidavit that at the time of promotion of respondents 3 & 4 to the selection posts of Deputy Inspector General of Police and of Inspector General of Police the case of the petitioner was considered. We are therefore of the opinion that the petitioner is unable to substantiate his argument that there was no consideration of his case at the time of promotion of respondents 3 & 4 to the selection posts. We must therefore proceed on the footing that respondent No. 1 had considered the case of the petitioner and taken into account the record, experience and merit of the petitioner at the time of the promotion of respondents 3 & 4 to the selection grade posts. It is therefore not possible to accept the argument of Mr. N. C. Chatterjee that there was any violation of the constitutional guarantee under Arts.14 and 16 of the Constitution in the present case. Mr.N.C.Chatterjee argued that the introduction of the idea of merit into the procedure of promotion brings in an element of personal evaluation, and that personal evaluation open is the door to the abuses of nepotism and favouritism, and so, there was a. violation of the constitutional guarantee under Arts. 14 and 16 of the Constitution. We are unable to accept this argument as well-founded. The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones; an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able men? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policy. In this connection Leonard D.White has stated as follows:-
"The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole Organisation. The main interest to be served is the public interest, not the personal interest of members of the official group concerned. The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the Promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment. .... .... .... Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to oth
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er subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level. it is a dangerous guide. It does not follow that the employee longest in service in a particular trade is best suited for promotion to a higher grade; the very opposite may be true". (Introduction to the Study of Public Administration, 4th Edn., pp.380, 383). As a matter of long administrative practice promotion to selection grade posts in the Indian Police Service has been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr.N.C.Chatterjee that this procedure violates, in any way, the guarantee under Arts.14 and 16 of the Constitution.'' 17. In respect of the contention raised by the learned counsel for the petitioners as regards imposition of a condition that the candidates applying for the post of Director must send in only the articles / publications published in an American Indexing Service called 'PubMed', it has been properly replied by the learned senior counsel for the fifth respondent that the fifth respondent has publications not only in PubMed/Medline indexed journals, but also in journals indexed by other search engines like Scopus, Embase, Index Medicus, Index Copernicus and Biological Abstracts etc. 18. Apart from all the above, it has to be seen that the post of Director, JIPMER is a selection post. From among the applicants who fulfils the eligibility criteria for the said post, the most suitable candidate has to be selected based on merit. JIPMER is an institute of national importance with a mandate to provide world class tertiary level patient care services, impart best teaching and training to generate highly competent healthcare manpower and to conduct research relevant to the local needs. Hence, it requires a meritorious person having great contributions to the field of medicine at the national level. 19. In view of the foregoing discussions, the writ petition does not deserve any consideration and accordingly the same is dismissed. No costs. Consequently the connected miscellaneous petitions are closed. Considering the importance involved in this matter, we hereby direct the respondents to proceed with the selection process. 1. The Director, Jawaharlal Institute of Postgraduate Medical Education & Research, Dhanvantri Nagar, Gorimedu, Pondicherry-605 006. 2. The Secretary to Government, Government of India, Ministry of Health & Family Wefare, A Wing, Nirman Bhawan, Maulana Azad Road, New Delhi-110 011. 3. The Chairman, Search-cum-Selection Committee, Ministry of Health and Family Welfare, A Wing, Nirman Bhawan, Maulana Azad Road, New Delhi-110 011. 4. The Member Secretary, Screening Committee, Jawaharlal Institute of Postgraduate Medical Education & Research, Dhanvantri Nagar, Gorimedu, Pondicherry-605 006. 5. The Registrar, Central Administrative Tribunal, Chennai Bench High Court Buildings, Parrys Chennai-600 104.