judgement:
tition (Criminal) No. 37 of 1983.
(Under Article 32 of the Constitution) Mrs. M. Qamaruddin and Rizwan A. Hafiez for the Petitioner.
O.P. Malhotra, and D. Bhandari for the Respondents.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
Taking into consideration the fact that this is a petition for a writ of Habeas Corpus filed under Article 32 the Constitution of India challenging the legality of the preventive detention of the petitioner under the provisions of the and the consequent urgency of the matter, as soon as the hearing of arguments in the case were completed, we announced the conclusion reached by us by passing the following order: "After hearing counsel, appearing on both sides, we have come to the conclusion that the order of detention impugned in this Writ Petition does not call for any interference.
The Writ Petition is accordingly dismissed.
Detailed reason will follow.
" We now proceed to state the reasons that weighed with us in reaching the aforesaid conclusion.
342 By an order dated November 6, 1982, passed by the District Magistrate, Moradabad, in exercise of the powers conferred under section 3, sub section 3 of the National Security Act, 1980 hereinafter called the Act the petitioner, Shri Raisuddin @ Babu Tamchi was ordered to be arrested by the Senior Superintendent of Police and to be detained in the District Jail, Moradabad, with a view to his being prevented from indulging in any activity which may affect the maintenance of public order.
Pursuant there to, the petitioner was arrested on 8th November, 1982, and placed under detention.
On the same day (8.11.1982), the petitioner was served with the order of detention and a memorandum setting out the grounds of his detention.
On 12th November, 1982, the State Government approved the detention of the petitioner and on the 18th of November, the case was referred by the State Government to the Advisory Board constituted under section 9 of the Act.
Subsequently, on 24th November 1982, the petitioner submitted his representation against the order of detention.
The said representation was addressed by the petitioner to the District Magistrate, Moradabad.
The District Magistrate forwarded the representation on the same day to the Senior Superintendent of Police, Moradabad, for his comments on the submissions contained in the letter.
On the 27th of November, 1982, the Senior Superintendent of Police submitted his comments to the District Magistrate.
Thereafter, on 3rd December, 1982, the District Magistrate sent a report to the State Government enclosing the representation as well as the comments submitted by the Senior Superintendent of Police.
The aforesaid papers despatched from Moradabad were received by the State Government on the 6th December, 1982.
On 9th December, 1982, the State Government considered the petitioner 's representation and rejected the same.
Simultaneously, on the same day, the State Government forwarded the representation of the petitioner to the Advisory Board.
On 10.12.1982, the Advisory Board met to consider the case of the petitioner, gave a personal hearing to the petitioner and drew up its report holding that there was sufficient cause for the detention of the petitioner.
The report of the Advisory Board was received by the State Government on 12th December, 1982, and on 21st December, 1982, the State Government confirmed the detention order under section 12 of the Act.
The petitioner was informed about the order of confirmation on 24.22.1982.
Though a faint attempt was made before us by the counsel for the petitioner to contend that the grounds of detention.
served on the petitioner did not disclose any material relevant under section 3 of 343 the Act, there is no scope at all for urging such a contention in the present case.
The imputation against the petitioner is that he was inciting and fomenting communal hatred and violence and creating an atmosphere of fear and tension in the town of Moradabad as a result of which the schools, colleges and shops were remaining closed in the town and terror reigned in the whole town.
Two criminal cases had been registered against him under section 147/353/153A I.P.C./7 Criminal Law Amendment Act.
As there was a possibility of his being released on bail and continuing to indulge in such activities which were greatly prejudicial to the maintenance of public order, it was considered necessary by the detaining authority to place the petitioner under detention.
Having regard to the situation then prevailing in the town of Moradabad which was unfortunately the scene of grave communal disturbances, it is impossible to countenance the contention advanced on behalf of the petitioner that the grounds set out in support of the order of detention are irrelevant for sustaining an order of detention being made under section 3 of the Act.
The next argument advanced on behalf of the petitioner was that there had been inordinate delay on the part of the detaining authority in forwarding the petitioner 's representation to the State Government.
The petitioner had addressed his representation not to the State Government as contemplated by section 8 of the Act, but to the District Magistrate, Moradabad.
It was received by the District Magistrate on the 24th of November and promptly, on the same day, the District Magistrate forwarded it to Senior Superintendent of Police for the latter 's comments.
The comments of the Senior Superintendent of Police were received in the office of the District Magistrate on the 27th November but it was only on the 3rd December that the District Magistrate forwarded his report to the State Government enclosing the petitioner 's representation and the comments of the Senior Superintendent of Police.
It was vehemently argued by the counsel for the petitioner 's that there had been undue and unexplained delay on the part of the detaining authority in forwarding the petitioner 's representation to the State Government inasmuch as a period of nearly six days had elapsed between the receipt of the comments of the Senior Superintendent of Police in the office of the District Magistrate and the submission of his report to the State Government.
The original file pertaining to this case maintained in the office of the District Magistrate was produced before us for our perusal by Shri O. P. Malhotra, the learned Senior Advocate appearing on behalf of the respondents.
It is seen therefrom that during 344 the period from 28th November to the evening of the 1st December, 1982, the District Magistrate had to emergently leave his headquarters because of the disturbances that had occurred in other localities within his Jurisdiction where his presence was urgently needed for tackling the explosive situation.
After he returned to the headquarters on the evening of 1st December, the District Magistrate without losing any further time forwarded the petitioner 's representation to the State Government on the 3rd December together with his report and the comments received from the Senior Superintendent of Police.
We are fully satisfied on our perusal of the file and the averments contained in the counter affidavit filed on behalf of the respondents that the petitioner 's representation has been dealt with by the District Magistrate with all the promptness that was reasonably possible under the circumstances then obtaining in Moradabad city and the surrounding areas and that the charge of inordinate delay levelled by the petitioner is baseless.
In this context we consider it necessary to emphasise that the question whether the representation submitted by a detenu has been dealt with all reasonable promptness and deligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the facts and circumstances of each case; if on such examination, it is found that there was any remissness, indifference, or avoidable delay on the part of the detaining authority/State Government in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu; on the other hand, if the Court is satisfied that the delay was occasioned not by any lack of deligence or promptness of attention on the part of the authority concerned, but due to unavoidable circumstances or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention.
As already indicated, the case before us falls under the latter category inasmuch as we are satisfied that there was no avoidable delay on the part of the District Magistrate in forwarding the petitioners representation.
The last point urged on behalf of the petitioner is that there has been a violation of the provisions of the section 10 of the Act because the Advisory Board had not considered the case of the petitioner within three weeks from the date of detention.
As already noticed, the petitioner submitted his representation to the District Magistrate against the detention only on 24.11.1982 even though he had been arrested and placed under detention on 8th November.
The 345 said representation reached the State Government on 6th December, 1982.
In the meantime, the petitioner 's case had been referred by the State Government to the Advisory Board on the 18th November itself.
The representation received from the petitioner was forwarded by the State Government to the State Advisory Board on 9th December, 1982.
The Advisory Board held its meeting on 10th December, 1982 and, after affording a personal hearing to the petitioner, made its report finding sufficient cause for the detention of the petitioner.
The argument put forward on behalf of the petitioner is that section 10 mandatorily enjoins the State Government to take steps to see that the case of the detenu is considered by the Advisory Board within three weeks from the date of detention.
We are unable to see any merit in this contention.
Section 10 reads.
"Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub section (3) of section 3, also the report by such officer under subsection (4) of that section.
" Under the section, a duty is cast on the appropriate Government to "place before" the Advisory" Board constituted under section 9 within three weeks from the date of detention, the grounds on which the order of detention has been made and the representation, if any, made by the person affected by the order.
The petitioner 's counsel wanted us to interpret the words "place before the Advisory Board" as meaning "get considered by the Advisory Board".
We are wholly unable to accede to this argument.
Under the terms of the section, the duty cast on the appropriate Government is to forward to the Advisory Board constituted under section 9 within three weeks from the date of detention, the papers pertaining to the detention of the detenu consisting of the grounds on which the order has been made, the representation, if any, made by the person affected by the order, etc.
It is to be remembered that the Advisory Board is not an entity subordinate to the Government.
It is a wholly independent body consisting of persons who are or have been or are qualified to be 346 appointed as Judges of a High Court.
It is entirely for the Advisory Board to regulate its schedule of holding meetings and conducting its business in accordance with the procedure laid down under section 11 of the Act which has specified a time limit or seven weeks from the date of detention for the submission of the Board 's report to the appropriate Government.
It is, therefore, wholly wrong to interpret the words "place before" as meaning anything more than forward to or submit before the Advisory Board the relevant papers relating to the detention of the detenu.
In the present case, the Advisory Board has disposed of the petitioner 's case well within the period of seven weeks specified in sub section (1) of Section 11 of the Act.
This contention of the petitioner is also, therefore, devoid of substance.
The conclusion that emerges from the foregoing discussion is that there is no ground whatever justifying any interference with the order of detention passed against the petitioner and the writ petition is, therefore, only to be dismissed.
H.S.K. Petition dismissed.

summary/full:
The petitioner who was detained by an order passed under sec.
3 (3) of the challenged the validity of his detention on the ground that there had been inordinate delay on the part of the detaining authority in forwarding the petitioner 's representation to the State Government and that there had been violation of the mandatory provisions of sec.
10 of the Act which enjoins the State Government to take steps to see that the case of the detenu is considered by the Advisory Board within three weeks from the date of detention.
Dismissing the writ petition, HELD: The question whether the representation submitted by a detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the facts and circumstances of each case; if on such examination, it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority/State Government in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu; on the other hand, if the Court is satisfied that the delay was occasioned not by any lack of diligence or promptness of attention on the part of the authority concerned, but due to unavoidable circumstance or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention.
[344 C F] The instant case falls under the latter category inasmuch as the court is satisfied on its perusal of the original file pertaining to this case maintained in the office of the District Magistrate and the averments contained in the counter affidavit filed on behalf of the respondents that the petitioner 's representation has been dealt with all the promptness that was reasonably possible 341 under the circumstances then obtaining and that there was no avoidable delay on the part of the District Magistrate in forwarding the petitioner 's representation.
[344 B; G] Under sec.
10 of the Act a duty is cast on the appropriate Government to "place before '; the Advisory Board constituted under sec.
9 within three weeks from the date of detention the grounds on which the order of detention has been made and the representation, if any, made by the person affected by the order.
It is wholly wrong to interpret the words "place before" as meaning anything more than 'forward to ' cr submit before ' the Advisory Board the relevant papers relating to the detention of the detenu.
It is entirely for the Advisory Board to regulate its schedule of holding meetings and conducting its business in accordance with the procedure laid down under sec.
11 of the Act which has specified a time limit of seven weeks from the date of detention for the submission of the Board 's report to the appropriate Government.
[345 G H; 346 A B] In the present case the Advisory Board had disposed of the petitioner 's case well within the period of seven weeks specified in sub sec.
(1) of sec.
11, of the Act.
[346 C]


judgement:
Civil Appeal Nos.
133 134, 137 140, 142 146, 595, 3045 3046 of 1982.
(Appeals by Special leave Petitions from the Judgment and Order dated the Ist October, 1981 & 14th August, 1981 of the Allahabad High Court (Lucknow Bench) in Writ Petition Nos.
1834, 3946, 3825,2953, 4177, 4163,4234, 4319,4320, 3591, 3775, 2952 and 1662 of 1981).
With Civil Appeal No. 3047 of 1982 Appeal by Special leave from the Judgment and Order dated the 19th March, 1982 of the Allahabad High Court (Lucknow Bench) in WP.
No. 4245 of 1981.
304 ADVOCATES FOR THE APPEARING PARTIES: section N. Kacker, Ms. section Bhandare, T. Sridharan & Ms. C. K. Sudhariata.
K. K. Jain, M. D. Sagar, P. Dayal, Pankaj Kalra, R. P. Singh, vs A. Bobde, K. J. John, Altaf Ahmed, Kailash Vasdev, Ms. Vrinda, Anil Kumar Gupta, Brij Bhushan, Kapil Sibil, Ms. section Dikshit, Sudhi Kulshreshtha, B.R. Agarwala, R.H. Pancholi, Vijayalakshmi Menon & B.P. Singh.
J.: Soon after our hard won freedom there was a gradual rise in the urban population in view of the process of industrialisation and setting up of heavy projects and industries in order to make our country more and more self sufficient.
This led to a certain spurt and rise in the urban population as people from the rural areas started pouring into the urban cities which provided far better opportunities for education and employment than the rural areas.
This sudden increase in urban population led to the spread of epidemics and diseases resulting in a rapid growth of educational institutions both in the public and private sectors.
In these appeals, we are concerned only with the medical education; the Government had to face a serious problem with the coming up of medical colleges which started growing like mushrooms and were charging huge capitation fees to make substantial profits without providing proper medical education and caring precious little for achieving excellence of standards in medical education which, if denuded of such standards, would pose a serious health hazard to the people.
Surely, we would not wish that people who could ill afford to go in for well equipped expensive medical practitioners should be thrown at the mercy of quacks.
Similar situation arose in technical, engineering and other kinds of institutions but we would concentrate on the feature and facets of medical education which alone forms the subject matter of these appeals.
We have seen from our experience that each year there is a huge rush for admission to seats in medical colleges for various courses, which being rather few and insufficient to control or absorb all sorts and kinds of candidates as the well known Persian proverb "JAYE TANG AST WA MARDUMA BISYAR" (i.e. little space and people many) seems aptly to apply in such a situation.
However, in order to meet the 305 contingency resulting from a heavy rush for admissions the institutions set up certain standards or tests which had to be complied with before candidates could be admitted.
Here also, as in other spheres, favouritism and nepotism have their own role to play as a result of which merits suffer.
In order to meet these contingencies and ward off such evils, the Government through its circulars and the Medical Council of India being alive to this delicate and difficult problem sought to solve the problem by making rules and regulations for admission of candidates to various courses in different disciplines (subjects) to achieve excellence in medical standards keeping in view statutory and constitutional reservations.
Unfortunately, however, these rules were often flouted and observed more in breach than in compliance by those who were in charge of the medical education: the result was again a huge spurt of writ petitions in the High Court to weed out the inefficient and ineligible and absorb the efficient and eligible, With this short prelude, now to the facts of the case which disclose a sad story indeed not because those in charge of the institutions commit errors but because the courts start directing the authorities to grant provisional admissions to students even if they did not deserve the same in some cases.
Experience has shown that in view of the huge accumulation of arrears in courts, it takes a long time for the petitions to be disposed of, hence we have evolved the practice of forcing the authorities to grant provisional admissions which has resulted in a piquant and pungent situation because by the time the case comes up for hearing, the rejected candidates having completed their course and having appeared at the examination with every hope of success become eligible for admission to the higher course in case of success though the Court may ultimately find that their initial rejection was justified.
Such a situation becomes a sort of a fait accompli for those in charge of the institutions as a result of which the candidates are admitted in due deference to the desire of the court by increasing or creating vacancies even in the absence of suitable and proper facilities to train the extra candidates.
This results in an anathema and a dilemma for which there is hardly any remedy.
The present cases are a clear illustration of this problem Our suggestions, therefore, is that whenever a writ petition is filed provisional admission should not be given as a matter of course on the petition being admitted unless the court is fully satisfied that the petitioner has a cast iron case which is bound to succeed or the error is so gross or apparent that no other conclusion is possible.
In order, however, to test this fact even a short notice may be given to 306 explore as to what the other side has to say and thereafter if the court is satisfied that there is strong prima facie case and the matter needs thorough examination, provisional admission may be given.
We hope and trust that the High Courts would in future discontinue the practice of lightly granting provisional admission to the candidates at the time of regular admissions, as observed above.
It is needless to state that this Court on its part would also be extremely reluctant to grant provisional admission and would do so only in a very special case.
The fundamental reason for this is that otherwise the institutions are likely to become overcrowded by candidates, eligible or ineligible, efficient or inefficient.
Unless the Institutions can provide complete and full facilities for the training of each candidate who is admitted in the various disciplines, the medical education will be incomplete and the universities would be turning out Doctors not fully qualified which would adversely affect the health of the people in general.
Out of these appeals, some of them have been dismissed as not pressed, others were heard on merits.
By the time the case was taken up by this Court, in as many as 9 out of the 20 appeals the candidates had completed their courses and as only the result had to be declared, the counsel for the State with his usual fairness, realising the futility of forcing the candidates to complete the course all over again conceded that the results of such candidates may be declared and on passing the same they would be admitted to the courses concerned though the petitioners were lacking in merits and their original rejection was justified.
We made this direction by a formal order, the reasons for which we would give hereafter.
This now brings us to the consideration of the appeals which survive.
Before dealing with the individual cases of the appellants/respondents, it may be necessary for us to adjudicate on the validity of the circulars passed by the Government and the rules and regulations framed by the Medical Council of India, to put the matter beyond controversy so that a consistent test may be applied to all candidates desiring admission and unless rules are adhered to, admissions would be denied in which case this Court will not interfere in the absence of a plea of prejudice or bias which would be naturally for the candidates to establish.
In some cases the candidates are appellants and in a few the State is the appellant and therefore for facility, the candidates who have filed appeals against refusal for admission to the M.D.M.S. 307 Course of the king Georges Medical College, affiliated to the Lucknow University, will hereinafter be referred to as the candidates ' and the State of Uttar Pradesh will be referred to as the 'State '.
We might also mention that before the appeals were heard on merit, C.A. Nos. 132 and 136/82 were dismissed as not pressed, owing to lack of instructions, by our order dated 17 8 83 and C.A. Nos. 135, 141 and 163/82 were also dismissed by this Court as not pressed.
Thus, the appeals filed by the candidates or the State which survive, alone need be adjudicated by this Court.
The facts of the case, the grounds taken by the candidates or the State and other details have been very clearly set out in the judgment of the High Court and it is not necessary for us to repeat the same all over again.
The appeals arise out of the admissions sought by several candidates to the M.D.M.S. courses for the year 1981 82, the session starting from 1.4.1981.
In order to regulate the admission of the candidates to the M.D.M.S. course the Government by an order dated 3.12.80 laid down the tests and criteria for admitting the candidates to the courses in various disciplines.
The High Court has rightly pointed out that there are diverse modes of determining one 's merit which, in our opinion, is of prime importance because while admitting candidates to M.D. course every precaution should be taken to rule out inefficiency or incompetency lest the candidate admitted and passed, turns out to be a serious health hazard to the people who are to be treated by him.
The High Court further pointed out that merit should be determined with reference to good academic career or to the performance at the last M.B.B.S. examination or at the last qualifying examination.
It is common ground that in these cases of the candidates, they had passed their MBBS examination securing aggregate marks ranging from 63% to 43% in various disciplines.
The main disciplines in which the admissions were sought by the candidates were M.D. (obstetrician & Gynaecology), M.D. (Anaesthesia), M.S. (Orthopaedic Surgery), M.D. (Paediatrics), M.D. (Medicine) and M.D. (Tuberculosis) differing from candidate to candidate.
The Government by its order dated 3.12.80, as mentioned above, chose the safest method to determine the merit and suitability for the candidates to be admitted to the M.D./M.S. courses on the basis that the admission should be made purely on merit as gleaned from the marks obtained by them in the total percentage of the MBBS examination.
The Government order dated 3.12.80 may be extracted below because on this depends the entire fate of the admissions to be granted to the competing candidates: 308 "The Governor, considering it so necessary and keeping in view the recommendations of the Medical Council of India, is pleased to order that with effect from December 14, 1979 the following policy and procedure shall be followed with regard to the admission of candidate in the Post graduate course (Degree and Diploma) in the State Medical Colleges and the King Georges Medical Colleges, Lucknow.
(1) Admission shall be made only on the basis of merit.
(2) The basis of determining the merit shall be percentage of marks worked out after deducting one percent marks for each failure in every subject from the total percentage of marks obtained in the M.B.B.S. Examination.
In case of a candidate who fails in a subject and is declared successful in second or subsequent attempt in that subject, the marks obtained by him for day to day performance in the first examination in that subject shall be added to his total marks while preparing the said index.
" The Order seems to us to be fully consistent with the tenor and spirit of the Rules framed by the Medical Council of India, which is a statutory body, whose Rules are binding on all the colleges and universities in the country providing for medical education.
On an interpretation of the Government order the High Court was of the opinion that a Candidate passing MBBS examination in four subjects with a 3rd Division cannot be preferred to the one possessing the said degree in one subject only with a first division because that would decide the index of merit.
The Government order was made under section 28(5) of the U.P. State Universities Act, 1973 (U.P. Act No. X of 1973) (for short, hereinafter to be referred to as the 'Act ').
The High Court also correctly found that merely because a candidate happens to obtain a Diploma after passing MBBS Examination in any subject he would not be entitled to weightage for otherwise the entire complexion of pure merit and suitability as intended by the Government order, which does not provide for any such weightage, would be set at naught.
This now brings us to the relevant provisions of the Rules framed by the Medical Council of India on the recommendations 309 of Post graduate Medical Education which were adopted in February 1971, i.e. long before the present writ petitions were filed in the High Court.
The relevant portions of the Rules may be extracted thus: (1) For M.D./M.S. Degree in clinical subjects, there shall be proper training in basic medical sciences related to the disciplines concerned as well as paper in these subjects at the examination.
In the case of M.D. & M.S. in basic medical sciences there should be training in applied aspects of the subject and a paper on the Subject.
(2) Thesis should be a part of the examination in the degree courses as this gives training in research methodology.
(3) The student teacher ratio should be such that the number of post graduate teachers to the number of post graduate students admitted per year be maintained at 1:1.
For the proper training of the post graduate students, there should be a limit to the number of student admitted per year.
For this purpose every unit should consist of atleast 3 full time post graduate teachers and can admit not more than 3 students for post graduate training per year.
If the number of post graduate teachers in the unit is more than three then the number of students can be increased proportionately.
For this purpose one student should associate with one post graduate teacher.
"Where the number of post graduate teachers is less than 3 per unit then the number of students should be reduced so as to keep the ratio to one student teacher per year.
" It would be seen that it was clearly mandated by the Medical Council that normally the ratio of student: teacher should be one teacher to 1 student per unit and in exceptional cases in a unit with one post graduate qualification, a maximum of two students should be admitted per year.
The Rules further lay down that in addition to the students admitted to M.D./M.S. courses, a maximum number of six students per year can be admitted to diploma courses in such departments where diploma courses are conducted.
In case the number of recognised post graduate teachers was more than three, 310 the number of students for admission to the diploma course may be increased on a ratio of two students per additional recognised post graduate teacher per year subject to a maximum of 12 students admitted in the department.
Then come the most important rules which determine the selection of post graduates for degree and diploma courses.
Rules 5 and 7 may be extracted thus: "(5) The selection of post graduates both for degree and diploma courses should be strictly on the basis of academic merit. . . (7) Candidates pursuing degree or diploma courses should work in the concerned department of the Institution for the full period.
" Coming now to the criteria laid down by the Rules for selection of candidates, Paragraph (1) of rule (c) may be quoted below: "They must subsequently have done one year 's housemanship prior to admission to the post graduate degree or diploma course.
Housemanship should preferably be for one year in the same subject, or at least six months in the same department and the remaining six months in an allied department.
Provided that in departments like Radiology/Aneesthesiology/Physical Medicine & Rehabilitation where suitable candidates who have done housemanship in the respective subject for the respective speciality are not available then the housemanship in Medicine and/ or in Surgery may be considered as sufficient.
" The above rule clearly provides that the candidates must have done one year 's housemanship prior to admission to the post graduate degree or diploma course preferably in the same subject, which has been technically called as 'discipline ', or atleast six months in the same department and the remaining six months in an allied department.
It further lays down, that in order to determine the merit of a candidate for admission to post graduate medical courses the following three factors must be taken into consideration: (1) his performance at the MBBS examination, 311 (2) his performance during the course of internship and housemanship for which a daily assessment chart should be maintained, and (3) the report of the teacher which is submitted from time to time.
Alternatively, the authorities concerned may conduct competitive entrance examination to determine the merit of a candidate for admission to post graduate medical courses.
The other methods covered by the Rules are not germane for the purpose of deciding these cases.
As these Rules were adopted by the Medical Council of India they became rules made under s.33 of the of 1956 passed by the Government of India and, there fore, had doubtless a statutory effect.
The candidates consist of students who had not been admitted to the medical courses and they have assailed the refusal of their admission as being violative of article 14 of the Constitution and to the statutory orders passed and rules framed by the Government from time to time.
In some cases, the Government order referred to above has also been challenged as being arbitrary and outside the scope of article 14.
Before dealing with the contentions of the parties on merit we might dispose of a few matters as a result of which some of the appeals do not survive at all.
As observed above, the admission sought by the candidates were in the session of 1981 82 and by the time these cases came up for hearing by the High Court or this Court, the session has completely run out but as provisional admissions had been allowed either by the High Court or by this Court the candidates had completed their M.D./M.S. courses and in some cases only the results were to be declared.
Realising the piquant situation that arose in view of the provisional admissions, the learned counsel for the State very fairly agreed to the declaration of the results of the following candidates: 1.
Dr. Krishna Priya Ganguly (C.A. 133/82) 2.
Dr. Gopal Krishan Goyal (C.A. 134/82) 3.
Dr. Pramod Kumar Kohli (C.A. 137/82) 312 4.
Dr. Pratap Singh (C.A. 138/82) 5.
Dr. Kamal Mehra (C.A. No. 139/82) 6.
Dr. R.S. Topwal (C.A. No. 140/82) 7.
Dr. Hari Om Gupta (C.A. No. 3045/82) 8.
Dr. R.C. Aggarwal (C.A. No. 3046/82) 9.
Dr. Ved Prakash Gupta (C.A. No. 3047/82) The counsel for the State further agreed to passing an order that those candidates who were refused admission but granted provisional admissions under the orders of the Court may be deemed to be admitted to complete the course according to the provisions of the Rules.
We might mention that this concession was made because the candidates concerned had secured pretty high percentage and since they had completed the course in the peculiar facts and circumstances of the case.
As far as C.A. No. 3045/82 filed by the State against the decision of the High Court is concerned, the view taken by the High Court is unsustainable.
The High Court could not have given a goby to the rules framed by Admission committee.
It was a matter for decision of the academic body and since the academic body had applied the rules in a bona fide manner to all the students equally, there was no jurisdiction whatsoever on the part of the High Court to interfere with the internal working of an academic institution concerned with imparting higher education in the field of post graduate course in medicine.
The Rule prescribing that housemanship must be in the same subject is not inconsistent with the ordinance.
It is supplementary to the ordinance and amplifies the same.
Hence there is no inconsistency and the High Court was therefore clearly wrong.
However, as the counsel for the State has agreed to declare his result we do not pass any order for reversing the directive issued by the High Court as far as Dr. Hari Om Gupta is concerned though the High Court was wrong.
As regards C.A. No. 3047/82 which has been filed by the State, the view taken by the High Court is altogether untenable.
The condition regarding putting in two years work in the department concerned could not have been dispensed with.
The High Court should not have interfered with the decision of the academic body.
The High Court cannot relax the rules or rewrite them.
After the 313 declaration of his result, as agreed to by the counsel for the State, if he fails at this examination he will have to put in two years work in the department concerned before he is permitted to appear for the final examination next time.
So far as the above mentioned appeals are concerned, it is not necessary for us to go to the merits or to give the reasons thereof in view of the fact that the candidates got what they wanted, on the basis of the concession made by the counsel for the State and accepted by this Court, as a result of which we passed orders for declaring the results of the candidates or directing them to complete the course.
We would however like to make it clear that after declaration of the results in case the candidates concerned in appeals do not pass or their thesis are not approved, they would have to do the full course all over again.
This position was accepted by the candidates who conceded that in case they failed in the examination the logical consequences will follow.
The candidates who were directed by this Court to be given admission may be listed below: 1.
Dr. Aditya Kumar (C. A. No. 142/82) 2.
Dr. Manoj Kumar (C. A. No. 143/82) The appeals that remain for consideration may now be taken up, viz., C.A.Nos.
144,145 and 595/82.
We might mention here that out of the appeals filed by the State the appeal which has been seriously pressed before is that of Dr. V.N. Sinha (C. A. No. 595/82) and the State has invited us to give a final decision in the matter which involves a serious question of principle.
Coming first to C.A. No. 144/82 filed by Dr. Rachna Saxena it appears that she had obtained an aggregate of 53.7% but the main obstacle in her way was that two candidates with a higher aggregate had been admitted and therefore her case did not merit any consideration.
Even from amongst those who did not secure admission there ware four others who had secured higher marks than her viz., Dr. Ganguly (59.23)%, Dr. Agarwal (57.40%), Dr. Jain (56.9%) and Dr. Upadhyaya (55.33%).
She could not therefore have secured admission in any event.
She cannot therefore complain of discrimination.
For these reasons, therefore, we affirm the decision of the High Court and dismiss C.A. 144/82 without any order as to costs.
314 C.A. No. 145/82 has been filed by Dr. V.K. Kohli.
After going through the judgment of the High Court and hearing counsel for the parties we entirely agree with the view taken by the High Court which seems to us to be unexceptionable on merits and must be confirmed.
The appeal is therefore dismissed without any order as to costs.
Coming now to C.A. No. 595/82 which has been filed by the State it seems to us after hearing counsel for the parties that the stand taken by the State is absolutely correct and for the reasons that we will give hereafter we find it impossible to support the judgment of the High Court.
To begin with, Dr. Vijay Narain Sinha who was being considered for admission to the M.S. course in Orthopaedic surgery had obtained only 43% marks in the aggregate and happened to be the last candidate in the list of persons who had applied for admission to the M.D./M.S. course.
This important handicap relating to Dr. Sinha seems to have been completely glossed over by the High Court by saying that though he has not secured very high marks but he could be almost equal in all respects to the candidates who had been granted admission.
This, however, was not so.
The main argument of the High Court was that in determining the six admissions which were made in consonance with the prescribed instructions indicated that the ratio of admission should be with respect to the strength of the staff in the concerned department.
The main complaint of the respondent (Dr.
Sinha) was that while there were six teachers in the Department of Orthopaedic surgery, nine admissions were made in that particular session.
The State had clearly explained that the usual number of candidates to be admitted was six and as a special case due to fortuitous circumstances an exception was made only in one session for good reasons which had been given by the State.
Thereafter no such departure had been made in any other session.
What the High Court completely over looked was that even if nine students were admitted Dr. Sinha could not have secured admission as he was on the very bottom of the list in view of the very low percentage secured by him.
The stand taken by the State has not been refuted by the counsel for the respondent who submitted that since the State had agreed to declare the results of all the candidates the respondent may also be given the same facility.
We are, however, unable to agree with this argument because to grant admission to a person who is appreciably below the required merit would be to play 315 with the lives of the people whom the candidate would have to treat after getting the M section degree.
The High Court seems to have relied mainly on the fact that in view of the increase in population and orthopaedic cases the college must have persons with special qualifications and as the respondent had a diploma that should be treated to be a special qualification.
A mere diploma however cannot override the consideration regarding the merit as disclosed in the low aggregate obtained by him in the last MBBS examination.
If the college authorities went by the pure test of merit, the diploma could not be a good substitute for admitting the lowest and the last candidate in the list.
The High Court could not devise its own criterion for admission.
Since the academic body has made the marks obtained in MBBS examination the criterion, admission had to be made by such a criterion.
The High Court could not have introduced its own notions in such an academic matter.
The High Court was not competent to do so and had no jurisdiction to import its own ideology.
The High Court further observed that the respondent appears to be a very dedicated worker having acquired a diploma and would have proved an invaluable asset to the Institution.
We do not see any proper material for this conclusion to which the High Court has suddenly jumped apart from the fact that admissions were not to be given by the High Court according to its own notions.
Finally, in his own petition in the High Court, the respondent had merely prayed for a writ directing the State or the college to consider his case for admission yet the High Court went a step further and straightaway issued a writ of mandamus directing the college to admit him to the M.S. course and thus granted a relief to the respondent which he himself never prayed for and could not have prayed for.
Such a gross discrimination made in the case of a person who had obtained lowest aggregate and lowest position seems to us to be extremely shocking.
Although much could be said against the view taken by the High Court yet we would not like to say more than this that the High Court had made a very arbitrary, casual and laconic approach to the case and based its judgment purely on speculation and conjectures swept away by the consideration that Dr. Sinha possessed a diploma when in fact other candidates also had obtained diploma but that could not be taken into consideration, because the rules did not so provide.
316 For these reasons, therefore, we allow this appeal and set aside the judgment of the High Court issuing mandamus to the State to admit the respondent to the M.S. course.
His writ petition in the High Court thus stands dismissed.

dataset_name: IN-Abs

summary/full:
This batch of appeals arose out of admissions sought by several candidates to post graduate courses in the Medical Colleges of Uttar Pradesh.
While in some of them the candidates were the appellants and the State the respondent, in others it was vice versa.
By an order dated 3 12 1980 the State Government had laid down that admissions were to be made purely on the basis of merit, the criterion being the total percentage of marks obtained by the candidate in the M.B.B.S. examination.
In as many as 9 out of the 20 appeals, the candidates who had been given provisional admissions pursuant to interim orders made by the Court had completed their courses and only their results were to be declared.
In all those cases, the State, realising the futility of forcing the candidates to complete the course all over again, conceded that the results of such candidates may be declared and on passing the same they would be admitted to the courses concerned though the candidates in question were lacking in merit and their original rejection was justified.
In one of the appeals filed by the State, the candidate in question had obtained only 43 percent marks at the M.B.B.S. examination and happened to be the last candidate in the list of persons who had applied for admission to the post graduate course.
Although the candidate had merely prayed for a writ directing the State or the college to consider his case for admission, the High Court, relying mainly on the fact that the candidate had a diploma to his credit, straightway issued a writ of mandamus directing the college to admit him to the course applied for, thereby granting a relief which the candidate himself had not prayed for.
HELD: The practice of forcing the authorities to grant provisional admissions has been evolved keeping in view the fact that on account of huge accumulation of arrears in courts it takes a long time for petitions to be disposed of.
By the time the cases come up for hearing, the rejected candidates might have completed their course and become eligible for admission to the higher course although the court may ultimately find that their initial rejection was justified and they did not deserve to be admitted to the course.
Such a situation becomes a sort of fait accompli for those in charge of the institutions 303 as a result of which the candidates are admitted in due deference to the desire of the court by increasing or creating vacancies even in the absence of proper facilities to train the extra candidates.
Unless the institutions can provide complete facilities for the training of each candidate admitted in the various disciplines, the medical education will be incomplete and the universities would be turning out doctors not fully qualified which would adversely affect the health of the people in general.
Therefore, the practice of lightly granting provisional admissions should be discontinued in future.
Whenever a writ petition is filed, provisional admission should not be given as a matter of course on the petition being admitted unless the court is fully satisfied that the petitioner has a cast iron case which is bound to succeed or the error is so gross or apparent that no other conclusion is possible.
In order to test this fact, even a short notice may be given to explore as to what the other side has to say and thereafter if the court is satisfied that there is a strong prima facie case and the matter needs thorough examination, provisional admission may be given.
The State Government order dated 3 12 1980 prescribing the criteria for admission to post graduate courses in Medical Colleges made under s.28(5) of the U. P. State Universities Act, 1973, is fully consistent with the tenor and spirit of the rules framed by the Medical Council of India.
The rules framed by the Medical Council of India have a statutory effect under s.33 of the and are binding on all the colleges and universities providing for medical education in the country.
The High Court had made a very arbitrary, casual and laconic approach to the case of the candidate who had obtained 43 per cent marks and based its judgment purely on speculation and conjectures swept away by the consideration that the candidate possessed a diploma to his credit when, in fact, other candidates also had obtained diploma and that could not be taken into consideration under the prescribed rules.


judgement:
ition No. 1519 of 1979.
(Under article 32 of the Constitution of India ) V.M. Tarkunde, P.H. Parekh and Miss Caprihan for the Petitioner R.R. Garg, L.R. Singh and Gopal Singh for Respondents 1 & 2.
D.P. Singh, L.R. Singh and Mr. Gopal Singh for Respondents 3 & 4.
Harbans Lal and G.S. Narain for Respondent No. 5.
Miss A. Subhashini, C.V. Subba Rao and R.N. Poddar for the Union of India.
The Judgment of the Court was delivered by MISRA J.
: By the present petition under Article 32 of the Constitution the petitioner seeks to challenge the appointment of Shri B.P. Adhikari, respondent No. 4, as the Director of the Indian Statistical Institute, respondent No. 1.
The Indian Statistical Institute is a Society registered under the Societies Registration Act.
It is governed by the Indian Statistical Institute Act, 1959 (hereinafter referred to as 'the Act ').
Its control completely vests in the Union of India, respondent No. 5.
It is wholly financed by the Union of India.
All the functions of the Institute are controlled by the Union of India, as is evident from the various provisions of the Act.
Under section 8 of the Act the annual work programmes of the Institute and the general financial estimates in respect of such work are settled by committees appointed by the Central Government and the Institute obviously cannot undertake any research or training programmes without the approval of the Central Government.
The Institute carries on an integrated programme of training, teaching and research in statistics and application of statistical techniques in other disciplines.
The Institute has been declared as an 'Institution of National Importance ' under the Act.
Under section 4 of the Act the Institute has been empowered to grant such degrees and diplomas in statistics as may be determined by the Institute from time to time.
In accordance with the provisions of section 5 of the Act the Central Government pays to the Institute in each financial year such sums of money as the Government considers 399 necessary by way of grant.
Loan or otherwise to enable the Institute to discharge efficiently its functions including research, education, training, project activities and statistical work relating to planning for national development.
Section.
6 of the Act deals with audit of accounts of the Institute by auditors duly qualified to act as auditors of companies under the and selected by the Central Government after consultation with the Comptroller and Auditor General of India.
Section 7 of the Act restricts the powers of the Institute to alter, extend or abridge its memorandum or rules and regulations and to sell or otherwise dispose of its property acquired with the money specifically provided for such acquisition by the Central Government except with the previous approval of the Central Government.
Section 9 empowers the Central Government to constitute a committee, inter alia, for reviewing and evaluating the work done by the Institute and the progress made by it as also advising Government generally on any matter which in the opinion of the Central Government is of importance in connection with the work of the Institute.
Section 11 of the Act empowers the Central Government to issue directions to the Institute.
Section 12 authorises the Central Government to assume control over the Institute under certain extreme circumstances.
The Institute receives grants from the Central Government to meet almost the entire expenditure on its plan and non plan activities.
The chief executive body of the Institute is the Council, respondent No. 2, consisting of 25 members including three representatives of the Central Government.
The Council is headed by the Chairman elected to that position by the Council by a simple majority from amongst the names proposed by the President or members of the Council.
The election of the Chairman of the Council is governed by bye laws of the Institute.
The initial appointment to carry out research and teaching work is to the post of professor.
The next post in the hierarchy is of Research professor and the highest in the hierarchy is the post of Distinguished scientist.
In order to discharge the administrative and academic responsibilities of the Institute, a Director, with distinctive administrative and academic acumen, is appointed by the Council, respondent No. 2.
Shri B. P. Adhikari, respondent No. 4, was appointed as the Director of the Institute by an order dated 3rd August, 1979.
This order of appointment has been challenged by the petitioner on various grounds.
400 According to the petitioner he was a Distinguished Scientist of the Institute at the relevant time.
To start with, he was appointed to the post of Economist in the Indian Statistical Institute on 1st October, 1962 on a monthly pay of Rs. 1000/ in the time scale of RS.
750 50 1250 plus special pay of Rs. 350/ per month.
Within a year he was promoted as Professor in the time scale of Rs. 1000 50 1500 with a starting pay of Rs 1400/ per month, and from 1st October, 1967 he had been holding the post of Research Professor in the time scale of Rs. 1600 100 1900.
On 1st January 1968 he was made officer in Charge and. entrusted with all technical matters, administration and developmental plans relating to planning and regional survey units special training in Delhi.
He was given a allowance of Rs. 200/ per month over and above the pay in the time scale of Research Professorship.
The petitioner has been responsible during the period 1962 1974 for the creation and promotion of several new activities of respondent No. 1 in Delhi.
Specialised training in National Planning and Econometrics for M. Stat.
(2nd Year) trainees of respondent No. 1 was started in Delhi under the direction of the petitioner.
In August 1974 the petitioner was designated as Head of the Delhi Centre and was also appointed to the Institute 's Committee of Administration.
On 12th March 1976 he was elevated to the position of 'Distinguished Scientist ' with pay of Rs. 3000/ per month plus allowances.
The petitioner has held responsible positions as Visiting Professor, Fellow, Chairman, Consultant, Research Associate, Lecturer etc.
in various Universities in India and in the United States of America and England.
He has been a member of the planning Commission, Government of India from January 1971 to December, 1973 and he has also been a member of the Sixth Finance Commission from July 1972 to October 1973.
The petitioner 's work has been acclaimed in the international as well as national spheres.
His work is rated high as evidenced by the award of Dadabhai Nauroji Memorial Prize for Economics in 1974 and the Jawaharlal Nehru Memorial Fellowship in 1975.
In 1976 the petitioner had the distinction of presiding over the annual conference of the Indian Society of agricultural Economics.
People abroad have also conferred recognition on the petitioner.
The petitioner 's scientific output has been substantial.
He has been active in research and he has published books.
Of importance on Theory of International Trade, Scheduling the operations of Multipurpose Reservoirs, Indian Planning, Planning and the Poor etc.
His contributions in the form of articles in collaboration with Indian 401 and foreign economists have been published in several journals in India and abroad.
One of his co authors, Prof. Arrow is a Nobel Laureate.
At present the petitioner is engaged in research on the following subjects: 1.
Growth, Poverty and Basic Need, Development Policy in Sri Lanka, Kerala and Punjab.
Inter Regional Comparisons of Agricultural Growth and Development in South Asia in the post colonial period.
It is claimed that a comparative evaluation of the achievements of the petitioner with those of respondent No. 4 clearly shows the superiority of the petitioner over respondent No. 4.
Respondent No. 4 had joined the Institute as Professor in the pay scale of Rs. 750 1250.
He was appointed in Delhi and was incharge of the evening course in Introductory Statistics.
He served in Delhi for about a year and then went to Calcutta and continued as professor from 1961 to 1974.
In contrast, the petitioner had started at a higher salary of Rs. 1000 p.m. plus a special pay of Rs 50 p.m.
The petitioner had been promoted to the higher rot of Research Professor on 1st October, 1967 in the time scale of Rs.1600 100 1900 while respondent No. 4 had been promoted to the post of Research Professor only in 1974.
At that time respondent No.4 's appointment as Research professor had been objected to as he had not published any technical paper since his joining the Institute in 1961.
The petitioner was senior to respondent No 4 as he had been appointed to the higher post of Research Professor earlier than respondent No.4.
On 12th March 1976 the petitioner was promoted to the position of a Distinguished Scientist.
The petitioner is senior to respondent No. 4 and all other scientists of the Institute.
The petitioner 's elevation to the position of Distinguished Scientists came much earlier than that of respondent No. 4.
The petitioner has been holding the position of Distinguished Scientist since 12th March 1976 while respondent No. 4 was not a Distinguished Scientist till his impugned appointment as Director.
Respondent No.4 has won no laurels in his sphere of work and his scientific output has been negligible.
Thus, from all accounts the petitioner was more qualified and his achievements in all spheres were much higher than those of respondent No. 4 or for the matter of that, than those of any other scientist of the Institute.
402 The Institute has an academic council consisting of the following members among others: "1.
All Professors, Research Professors and Distinguished Scientists.
. . 3. . 4. . 5.
. . 6. . 7.
Director (as Chairman of the academic council).
" The Institute is governed by its memorandum, regulations and bye Laws in the conduct of its affairs.
Bye law 2 provides the procedure for the appointment of a Director.
It reads: "The appointment of the Director shall be made by the Council on the recommendation made by a Selection Committee consisting of (i) Chairman of the Council (as Chairman), (ii) Two experts approved by the Council.
Before recruitment the Vacancy for Directorship should be suitably Publicised.
" In the meeting of the Council, respondent No. 2, on 16th April, 1979, Shri P.N. Haksar, respondent No. 3, the Chairman, reported about the absence of the Director and other allied matters and invited the attention of the members ' to the fact that the Director of the Institute, Prof. G. Kallianpur is unable to devote full time to the Institute.
The Council felt that since the Institute required full time attention it was desirable that Prof. Kallianpur should be requested to continue in the post of Director on a whole time basis.
The Chairman was authorised to write to the Director conveying the views of the members and after getting a response from Prof. KallianPur, to take further action.
In case Prof. Kallianpur resigned, 403 the Chairman was authorised to accept his resignation and then to set up a committee consisting of the following members to select a suitable person for the post of Director: 1.
Shri P.N. Haksar, Chairman.
Prof. Bhabatosh Datta.
Prof. S.S. Shrikhande.
Prof. M.S. Narasimhan. 5.
Dr. R Ramanna.
Subsequently another meeting of respondent No. 2 was held on 3rd August, 1979 in which the Chairman reported that Prof. Kallianpur had resigned from the Directorship of the Institute with effect from 30th June, 1979 and regarding the appointment of the new Director of the Institute the Chairman reported that the selection committee, which had been constituted by the Council in its meeting on 16th of April, 1979 had unanimously recommended the appointment of respondent No. 4 as Director of the Institute.
The Council approved the recommendation of the selection committee and it also approved the terms and conditions of appointment of respondent No. 4 as Director.
One of the terms of appointment of respondent No. 4 was that he should be in the substantive position of a 'Distinguished Scientist ' in the Institute on a monthly salary of Rs. 3000.
When the petitioner came to know about the appointment of respondent No.4 to the post of Director he felt aggrieved and met respondent No.3, the Chairman of the Council, Shri P.N. Haksar and expressed his deep unhappiness at the choice of the new Director of respondent No.1.
On getting no favourable response from respondent No.3 the petitioner tried to approach the other members of the Council to indicate his resentment at the alleged illegality and arbitrariness in the appointment of respondent No.4.
The petitioner addressed a letter to Shri N. Srinivasan, Secretary to respondent No.2, wherein he referred to the circular dated 4th August, 1979 which he had received intimating him about the appointment of respondent No.4 as Director of respondent No.1.
By this letter the petitioner pointed out to the Secretary that the appointing authority had not observed the rules and regulations and bye laws of the 404 Institute as laid down in the memorandum of association and had also violated the provisions of articles 14 and 16 of the Constitution.
He also pointed out that the vacancy of the post of Director had not been publicised and he being the seniormost researcher working as Distinguished Scientist of the Institute was not given an opportunity to apply for the same.
He also pointed out the arbitrary manner in which the appointment of respondent No.4 had been made, and he urged the Institute to rectify the error failing which he might be obliged to take legal action.
The petitioner likewise addressed a letter to another member of the Council, Prof. R.P. Bambah, who was a Professor of Mathematic in the Centre for advanced Studies, Punjab University and was one of the two Scientists co opted by the Council.
The petitioner in his letter to Prof. Bambah complained that with the appointment of respondent No. 4 the Directorship and his simultaneous designation to the post of Distinguished Scientist, the council had subverted the academic standards of the Institute and violated the rules and regulations as contained in the memorandum of association as also the various provisions of the Constitution.
Further, the appointment was arbitrary inasmuch as it was without any regard to the claims of senior and better known professional persons.
He appealed to Prof. Bambah to upheld the academic integrity of the Institute and initiate corrective action to rectify the wrong and rescue the Institute from manipulations of unprincipled people.
A similar letter was addressed by the petitioner to Shri S.C. Bhattacharya.
Director, Bose Institute, Calcutta, on 31st August, 1979, another member of the Governing Council of respondent No.1, who was one of the four representatives of the Indian National Science Academy.
He also wrote to Prof. P.V. Sukhatme, Professor of Biometry in Pune, who was also a distinguished member of the Council.
He was awarded the Padma Bhushan and also held the post of Director of Statistics Division of Food and Agriculture Organisation.
A Similar letter was addressed by him to Shri Subimal Dutt, President of respondent No. 1, reiterating the same grievances.
Similar letters dated 30th and 31st August, 1979 were addressed to Dr. K.C. Seal, Director, Central Statistical Organisation Government of India and to Shri Kirpa Narain, Secretary, Department of Statistics ' Government of India.
It may be pointed out that the members of the selection Committee and the members of the Council are all men of eminence and highly qualified persons.
405 Prof. S.C. Bhattacharya by his letter dated 5th of September, 1979 replied that the contents of the petitioner 's letter were disquieting.
He also stated that respondent No.4 had been identified as a suitable person by a group of eminent people and on the basis of advice received from them the Council, respondent No.2, had approved the appointment of respondent No.4.
the further.
stated that he was not making any further comments in the matter at this stage.
He was unaware of respondent No.4 having been designated as Distinguished Scientist by the Council in the meeting of 3rd August, 1979.
Regard in appointment he further said that no report of the selection committee had been circulated to the members of the Council but the announcement was made orally by the Chairman.
Since it was difficult to hear every word of the Chairman at the meeting he had assumed that the terms of appointment would be those ordinarily prescribed for the post of Director.
Prof Sukhatme in his reply said that he had not realised the grave issues which such an appointment could raise.
He wanted, however, to assure that there was no intention on their part to subvert the academic standards of the Institute.
He assured the petitioner that he would be writing to the Secretary on the Council to know what was the procedure tor appointing a person to the post of Distinguished Scientist and whether the same should have been explained to the Council before adopting the resolution.
Prof. R.P. Bambah on 22nd September, 1979 wrote a letter to Shri P.N. Haksar submitting his resignation presumably in protest against what had happened in regard to the appointment of respondent No. 4 as the Director of the Institute.
In his letter he stated that he had not received any official bio data or information regarding the scientific contribution of respondent No. 4 and other available candidates for the post of Director to enable him to form his own judgment.
He said that he presumed that the scientific contribution of respondent No. 4 must have been high enough to warrant his holding the post of Distinguished Scientist.
He also expressed the view that since the committee consisted of eminent scientific working under his guidance, he had presumed that all relevant factors had been taken into consideration regarding the appointment to the post of Director, including the quality of candidate 's scientific contribution, in coming to a decision.
In the circumstances he has constrained to resign from the Council since he had not displayed due diligence in the performance of his function as member of the Council.
406 The petitioner likewise received a letter from the Chairman in A which he did not deny the allegation contained in the petitioner 's letter dated 13th August, 1979 that the vacancy in the post of Director of respondent No. 1 had not been publicised.
Another meeting of the Council was held on 19th October, 1979 and in this meeting Prof. Raja Ramanna, Dr. S.C. Bhattacharya and Dr. P.V. Sukhatme were not present and Dr. Bambah had resigned on 22nd September, 1979.
Nonetheless, the proceedings of the meeting of 19th October, 1979 do not allude to Dr. Bambah 's resignation.
In this meeting the letter of the petitioner was considered, copies of which had been circulated to the members earlier and the Council decided that no action was necessary in the matter.
Shri V.M. Tarkunde appearing for the petitioner challenges the appointment of respondent No. 4 on various grounds: 1. (a) Bye law 2 expressly requires that the vacancy of the Directorship should be suitably publicised but in the present case no publicity whatsoever was given to the vacancy of Directorship.
(b) Even apart from the bye law, publicity was necessary if the appointment was to be fair and free from partiality.
(c) The petitioner and many others like him were not aware of the vacancy of the post of Director till the actual order of appointment of respondent No. 4 was made.
The petitioner was eminently suitable for being appointed to the post of Director keeping in view his various contributions in the field of his work and the active part played by him in resolving the administrative problems of the Institute.
No bio data or information was placed before the Council which under the bye laws was the appointing authority of the Director to enable the members to gauge the comparative suitability of various candidates for the post of Director.
No facts relating to the other candidates were presented before the 407 selection committee by the Chairman.
As such there was no application of mind by the members of, the Council, since no report was circulated regarding the recommendation of the selection committee, and the members of the Council took it for granted that all was well.
Shri R.K. Garg appearing for respondents Nos. 1 and 2 resisted the petition on the following grounds: (i) that the petition is not maintainable under article 32 of the Constitution as respondent Nos. 1 and 2 are not 'state or other authority ' within the meaning of article 12 of the Constitution.
(ii) (a) Even assuming, though not conceding, that there has been a violation of bye law 2 no writ can lie to correct the same as the alleged bye law has no statutory basis inasmuch as by the Indian Statistical Institute Act, 1959 Parliament only declared the Indian Statistical Institute, respondent No. 1 as an institution of national importance and if it has made bye law 2 for its guidance, such bye law cannot be said to have any statutory force.
(b) The bye laws not being statutory the respondents are under no obligation to observe the procedure laid down in the bye laws.
(iii) In any case the petitioner was duly and properly considered for selection to the post of Director and, therefore, he could not possibly make any grievance about violation of bye law 2.
In view of the contentions raised by the counsel for the parties the first question that falls to be considered is whether the writ petition is maintainable.
Article 12 of the Constitution defines 'State ' for the purposes of Part III of the Constitution.
It reads: 408 " 12.
In this part, unless the content otherwise requires, "the state" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
" The learned counsel for the petitioner, Shri Tarkunde has contended that having regard to the provisions of the Act and the memorandum of association, the composition of respondent No. 1 is dominated by the representatives appointed by the Central Government.
The money required for running the Institute is provided entirely by the Central Government and even if any other moneys are to be received by the Institute it can be done only with the approval of the Central Government, and the accounts of the Institute have also to be submitted to the Central Government for its scrutiny and satisfaction.
The Society has to comply with all such directions as may be issued by the Central Government.
The control of the Central Government is deep and pervasive and, there fore, to all intents and purposes, it is an instrumentality of the Central Government and as such is an 'authority ' within the meaning of article 12 of the Constitution.
It is, therefore, subject to the constitutional obligations under articles 14 and 16 of the Constitution.
Reliance was placed upon Ajay Hasia etc.
vs Khalid Mujib Sehravardi & Ors. etc.
The Constitution Bench in that case took, the view that the expression 'other authorities ' in article 12 must be given a broad and liberal interpretation, where constitutional fundamentals vital to the maintenance of human rights are at stake and functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form The Court pointed out the Government may act through the instrumentality or agency of juridical persons to carry out its functions, since, with the advent of the welfare State, its new tasks have increased manifold and such juridical persons acting as the instrumentality or agency of the Government must therefore be subject to the same discipline of fundamental rights as the State.
Proceeding further the Court observed: "It is undoubtedly true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles 409 with a certain amount of autonomy whish is necessary as well as useful from the point of view of effective, business management, but behind the formal ownership which is cast in the corporate mould, the reality is very much the deeply pervasive presence of the Government.
It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government.
Now it is obvious that if a corporation is an instrumentality or agency of the Government it must be subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it would be a distinct and independent legal entity.
If the government acting through its officers is subject to certain constitutional limitations, it must follow a fortiori that the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations.
If such a corporation were to be free from the basic obligation to obey the Fundamental Rights, it would lead to considerable erosion of the efficiency of the fundamental Rights, for in that event the government would be enabled to over ride the Fundamental Rights by adopting the stratagem of carrying out its functions though the instrumentality or agency of a corporation, while retaining control over it." Having regard to this decision and in view of the facts and circumstances in the present case there can be no doubt that respondent No.2 is an 'authority ' within the meaning of article 12 of the Constitution and, therefore, the writ petition filed by the petitioner is competent and maintainable and the objection raised by Shri Garg cannot be accepted.
The next question that aries for consideration is whether the appointment of respondent No.4 as Director of respondent No.1 is illegal because of non compliance with bye law 2.
Bye law 2 does require that before appointment, the vacancy in the post of Director should be suitably publicised.
In the instant case, it is admitted on both sides that no publicity whatsoever was given in respect of the 410 vacancy.
The contention of Shri Garg, however, is that the bye law having no force of statute, non compliance with its requirement can not in any way affect the appointment of respondent No. 4 as Director of respondent No. 1.
Shri Tarkunde, however, contended that assuming that the bye law is not statutory, even so respondent No. 1 was bound to comply with it.
In support of his contention he strongly relied upon Ramana Dayaram Shetty vs International Airport Authority of India.
The Court in that case held: "It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged a and it must scrupulously observe those standards on pain of invalidation of an act in violation of them.
This rule was enunciated by Mr. Justice Frankfurter in Viteralli vs Seton where the learned Judge said: "An executive agency must be rigorously held to the standards by which it professes its action to be judged.
Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.
This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so.
He that takes the procedural sword shall perish with the sword.".
The aforesaid principle laid down by Mr. Justice Frankfurter in Viteralli vs Seton has been accepted as applicable in India by this Court in A. section Ahluwalia vs Punjab and in subsequent decision given in Sukhdev vs Bhagatram.
Mathew J. quoted the above referred observation of Mr. Justice Frankfurther with approval.
In view of the pronouncement of this Court on the point it must be held to be obligatory on the part of respondent No. 1 to follow the bye laws, if the bye laws have been framed for the conduct of its affairs to avoid arbitrariness.
Respondent No. 1 cannot, 411 therefore, escape the liability for not following the procedure prescribed by bye law 2.
Compliance with this bye law also seems to be necessary in the name of fair play.
If the vacancy in the post of Director had been publicised as contemplated by bye law 2, all the persons eligible for the post may have applied and in that case, the field of consideration would have been enlarged and the selection committee or the Council would have had a much larger field from which to choose the best available person and that would have removed all doubt, of arbitrariness from the mind of those eligible for the post.
Of course, we do not wish to suggest for a moment that appointment to every post must be made only after advertising or publicising the vacancy.
That would not be right, for there are quite a few posts at the top level which cannot be and should not be advertised or publicised, because they are posts for which there should be no lobbying nor should any applications be allowed to be entertained.
Examples of such posts may be found in the post of Commander of Armed Forces or the Chief Justice or the Judges of the Supreme Court or the High Court.
But here bye law 2 requires that vacancy in the post of Director should be publicised and hence we are making they above observation in this paragraph.
The grievance of the petitioner is that he has not been considered for appointment to the post of Director although he is far superior to respondent No. 4.
If there had been due publicity as required by bye law 2, he and many others like him would have applied for the post.
Shri Garg, however, contends for respondent No. 1 that the petitioner can have no grievance as his case was duly considered as stated clearly in the affidavit of respondent No. 3, Shri P.N. Haksar, Chairman of the Council.
We accept the statement of respondent No. 3 that the case of the petitioner was considered by the selection committee but it is a little unfortunate that there is no written report by the selection committee for consideration by the Council.
No minutes of the proceedings before the selection committee have been maintained and none were circulated amongst the members of the Council along with the agenda of the meeting nor were any such minutes placed before the Council meeting when the name of respondent No. 4 was approved by the Council.
There is also nothing on record to show that the Council was at any time informed as to what names had been considered by the selection committee or that the name of the petitioner had been considered but respondent No. 4 was found superior.
It is always desirable that in 412 public bodies the minutes of the proceedings regarding selection A should be properly maintained in order to obviate any suspicion or doubt and such minutes along with the relevant documents should be placed before the final authority entrusted with the task of selection for appointment.
A lot of argument has been advanced by Shri Tarkunde that the achievements and accomplishments of the petitioner were much higher than those of respondent No. 4.
His contribution in the matter of research had won him high praise.
He ha written articles and books of great merit.
On the other hand the achievements or accomplishments of respondent No. 4 were much lower when com pared to those of the petitioner.
Be that as it may, it is not for the Court to determine who is the superior of the two candidates and who should be selected.
It is for the authorities concerned to select from amongst the available candidates.
The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all t relevant considerations before coming to a conclusion.
But the real difficulty is that in the absence of publicity as contemplated by bye law 2, it cannot be said that all other qualified persons like the petitioner were also considered by the selection committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.
Shri Garg, however, contends that the office of the Director is a very high office and this honour is conferred and not demanded and an application for this office from the candidates was not at all necessary as in the case of Judges of the Supreme Court, High Court and other constitutional posts of Comptroller and Auditor General of India etc.
The selection committee composed of eminent scientists of high reputation must be knowing about the reputed men in the field of statistics and it is expected that they must have considered the; case of those persons also.
For reasons we have already indicated, we find no force in this contention.
There is no provision for publicity in case of the constitutional posts of the Judges of the Supreme Court and High Courts and Comptroller and Auditor General of India.
Rather in the very nature of things, they cannot be and are not publicised.
But in the case of appointment of a Director, bye law 2 clearly provides for publicity and it can only be with the object that all concerned may 413 know about the vacancy and either applications or recommendations may be made for the post and the names of the eligible candidates my be brought before the selection committee for its consideration.
In the state of the record before us it is not possible to say that the members of the Council considered the case of the petitioner and other candidates like him before approving the appointment of respondent No. 4.
It is true that the members of the selection committee and those of the Council were experts in their respective subjects and were eminent scientists and we must proceed on the basis that they acted in all fairness and no oblique motive can be attributed to them.
Indeed Shri Tarkunde did not allege any mala fides against the members of the selection committee or the members of the Council.
On the admitted position, no publicity in regard to the vacancy was done at all.
No information about it was published even on the notice board kept in the various branches of respondent No. 1 at Calcutta and other places.
Nor was the information published in the journal of respondent No. 1.
There was clearly a breach of bye law 2 in making appointment of respondent No. 4 and there was no adequate material before the Council on the basis of which the members could apply their mind for determining as to whether they should approve the recommendation of the selection committee in regard to appointment of respondent No. 4.
For the foregoing reasons the writ petition must succeed.
It is accordingly allowed.
The order of appointment dated 3rd August, 1979 of respondent No. 4 as the Director of respondent No. 1 is quashed and set aside.
This will however not in any way affect the validity of any action already taken by respondent No. 4 as Director nor will it involve him in any liability to refund any excess remuneration received by him in his capacity af Director.
Before respondent No. 1 proceeds to select a new Director, it will comply with the requirement of bye law 2 by giving suitable publicity to the vacancy in the office of Director.
In the circumstances of the case the parties will bear their own costs.
N.V.K. Petition allowed.

summary/full:
The Indian Statistical Institute was registered under the Societies Registration Act, and governed by the Indian Statistical Institute Act, 1959.
Its control completely vested in the Union of India, respondent No. 5 in the appeal.
The Institute had been declared as an 'Institute of National Importance.
The chief executive body of the Institute was the Council, respondent No. 2 which consisted of 25 members of whom three were representatives of the Central Government.
The Council was headed by a chairman who was elected.
In order to discharge the administrative and academic responsibility of the Institute a Director was appointed by the Council.
Respondent No. 4 was appointed as a Director.
The petitioner in his Writ Petition challenged the appointment of respondent No. 4 on the ground that he was a person] of much higher academic and other accomplishments and far superior to the said respondent.
396 In the Writ Petition it was contended: (i) Bye law 2 expressly requires that the vacancy of Directorship should be suitably publicised but in the present case no publicity whatsoever was given to the vacancy of Directorship.
Publicity was necessary if the appointment was to be fair and free from partiality and that many were not aware of the vacancy of the post of Director till the actual order of appointment was made.
(ii) He was eminently suitable for being appointed to the post in view of the various contributions in the field of his work and the active part played by him in resolving the administrative problems of the Institute, and (iii) no bio data or information was placed before the Council which under the bye laws was the appointing authority to enable the members to gauge the comparative suitability of various candidates.
The petition was resisted on behalf of respondent Nos. 1 and 2 by contending: (i) the petition is not maintainable under Article 32 of the Constitution as respondents Nos. 1 and 2 are not 'state ' or 'other authority ' within the meaning of article 12 of the Constitution.
(ii) Even assuming that there has been a violation of bye law 2 no writ can lie to correct the same as the alleged bye law has no statutory basis inasmuch as the Institute has been declared as an Institution of National Importance ', the bye laws not being statutory the respondents are under no obligation to observe the procedure Laid down therein, and (iii) the petitioner was duly and properly considered for selection to the post.
Allowing the writ petition, ^ HELD: (i) The order of appointment dated August 3, 1979 of Respondent No. 4 as the Director of Respondent No. 1 is quashed and set aside.
Before Respondent No. 1 proceeds to select a new Director, it will comply will the requirement of bye law 2 by giving suitable publicity to the vacancy in the office or Director.
[413 F] (ii) There can be no doubt that respondent No. 2 is an 'authority ' within the meaning of Article 12 of the Constitution and, therefore, the writ petition filed by the petitioner is competent and maintainable.
[409 G] In the instant case, the money required for funding the Institute is provided entirely by the Central Government and even if any other moneys are to be received by the Institute it can be done only with the approval of the Central Government, and the accounts of the Institute have also to be submitted to the Central Government for its scrutiny and satisfaction.
The Society has to comply with all directions as may be issued by the Central Government.
The control of the Central Government is deep and pervasive and, therefore, it is an instrumentality of the Central Government and as such is an 'authority ' within the meaning of Article 12 of the Constitution.
It is, therefore, subject to the constitutional obligations under Articles 14 and 16 of the Constitution.
[408 C D] Ajay Hasia etc.
vs Khalid Mujib Sehravardi & Ors. etc. ; referred to 397 2.
(i) It is obligatory on the part of respondent No. 1 to follow the bye laws for the bye laws have been framed for the conduct of its affairs to avoid arbitrariness.
[410 G] (ii) Compliance with bye law 2 seems to be necessary in the name of fair play.
If the vacancy in the post of Director had been publicised as contemplated by bye law 2, all the persons eligible for the post may have applied and in that case, the field of consideration would have been enlarged and the selection committee or the Council would have had a much larger field from which to choose the best available reason and that would have removed all doubt of arbitrariness from the mind of those eligible for the post.
[411 B] Ramana Dayaram Shetty vs International Airport Authority of India ; ; Viteralli vs Seton 3 Law Fd.
Second Series 1012; A.S. Ahluwalia vs Punjab ; ; Sukhdev vs Bhagatram ; referred to.
(iii) In the case of appointment of a Director, bye law 2 clearly provides for publicity, the object being that all concerned may know about the vacancy and either applications or recommendations may be made for the post and the names of the eligible candidates may be brought before the selection committee for its consideration.
[412 H 413 A] (iv) It is not suggested that appointments to every post must be made only after advertising or publicising the vacancy.
That would not be right, for there are quite a few posts at the top level as for example Commander of Armed Forces or the Chief Justice or the Judges of the Supreme Court or the High Court, which cannot be and should not be advertised or publicised, because they are posts for which there should be no lobbying nor should any applications be allowed to be entertained.
[411 C D] (v) It is not for the Court to determine who is the superior of the two candidates and who should be selected.
It is for the authorities concerned to select from amongst the available candidates.
The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant considerations before coming to a conclusion.
But in the absence of publicity as contemplated by bye law 2, it cannot be said that all other qualified persons like the petitioner were also considered by the selection committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.
[412 C E] 3.
It is always desirable that in public bodies the minutes of the proceedings regarding selection should be properly maintained in order to obviate any suspicion or doubt and such minutes along with the relevant documents should be placed before the final authority entrusted will the task of selection for appointment.
[412 A] In the instant case, there is nothing on record to show that the Council was at any time informed as to what names had been considered by the selection committee or that the names of the petitioner had been considered but respondent No. 4 was found superior.
[411 H] 398