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PETITIONER: P.K. RAMACHANDRA IYER & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT16/12/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. ERADI, V. BALAKRISHNA (J)

CITATION:  1984 AIR  541            1984 SCR  (2) 200  1984 SCC  (2) 141        1983 SCALE  (2)1060  CITATOR INFO :  E          1984 SC1905  (1)  R          1986 SC 157  (59)  RF         1987 SC2086  (18)  R          1987 SC2267  (10)  RF         1988 SC 469  (11,12)  D          1988 SC1291  (9)  RF         1989 SC  19  (23)  RF         1991 SC1173  (5)  D          1992 SC  76  (3,8,9)

ACT:      Constitution of  India, 1950  Articles 12 and 32-Indian Council of  Agricultural Research-Whether instrumentality of Central Government-Whether  covered by  the expression other authorities-Whether amendable to writ jurisdiction      Articles  14,   16  and  39(d)-Pay  scale  of  post  of Professor  revised-Existing   incumbents  not   granted  the benefit of  revised scale-New incumbents granted the revised scale-Defence of employer was there was marginal revision in qualifications for  the post-Action  whether  discriminatory and unfair.      Articles 16-Selection  Committee-Whether has  power  to relax essential  qualifications for the post-jurisdiction of Courts to  interfere with  decision of  Selection Committee- When arises.      Malafides-Selection Committee-Qualification requirement relaxed  to   suit  preferred   candidate-Selection  whether vitiated.      Public employment-Experience to be of value and utility must be  acquired after  educational qualification obtained- Not while acquiring post-graduate qualification.      Indian Council  of Agricultural Research 1977, Rules 13 and 14: Fixation of minimum qualifying marks for eligibility for viva-voce  test-Further fixation  of qualifying marks to be obtained at viva-voce for final selection-Validity of.      Supreme Court  Rules 1966  Order XL  & Constitution  of India, 1950  Article 137:  Writ petition  dismissed by  High Court  allowing   preliminary  objection   that  it  had  no jurisdiction  to   entertain  petition-High   Court  becomes functus officio  and  decision  on  merits  inconsequential- Supreme Court in later case over-ruling the same preliminary objection-Supreme  Court   entitled  to  examine  matter  on merits-Review Petition maintainable.

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HEADNOTE:      The Royal Commission of agriculture constituted in 1926 recommended the  setting  up  of  the  Imperial  council  of Agricultural  Research-ICAR.   In  July   1929,   ICAR   was registered as  a society with its office in the Secretariat. It was  wholly financed  by the  Government of  India. By  a resolution dated  January 5,  1939 the  Government of  India modified the  status  of  ICAR  from  a  department  of  the Secretariat to  one of  an attached office of the Government of India.  Recruitment to  various posts  in ICAR  was  made through the  Federal Public Service Commission. Its expenses were voted  upon as  part of  the expenses  incurred in  the Ministry of  Agriculture. The  control of  the Government of India permeated 201 through all  its  activities.  To  it  was  transferred  the Research Institutes  set up  by the  Government of India. In order to  make it  financially viable  a cess was levied and the proceeds were handed over to ICAR for its use.      On the  advent of independence, the Imperial Council of Agricultural Research  was redesignated as Indian Council of Agricultural  Research.  With  effect  from  April  1,  1966 administrative  Control   over  IARI   and  IVRI  and  other institutes was transferred to ICAR.      Rule 18  of the  ICAR Rules  provided that  the Society shall  establish  and  maintain  its  own  Office,  Research Institutes and Laboratories and that the appointments to the various  posts   should  be  made  in  accordance  with  the Recruitment Rules  framed by  the Government Body. This rule which was  kept in  abeyance in January 10, 1966 was brought into operation in its entirety effective from April 1, 1974. The consequences  of this  rule becoming  operative was that the Secretariat  of ICAR  ceased to be an attached office of the Ministry of Food and Agriculture.      The Indian Veterinary Research Institute was one of the institutes under  the administrative  control of  ICAR.  The post of  Professor in  IVRI in 1958 carried the pay scale of Rs. 700-1250.  There were  6 posts  of Professor  in various disciplines. Three  posts of  Professors were  held  by  the petitioners in Writ Petition No. 587/75. On the introduction of the  pay-scales  recommended  by  the  University  Grants Commission, the  pay-scale attached to the post of Professor in the  Institute was  revised to  Rs. 1100-1600  during the year 1970-71  and six  new posts  of Professors  in  various disciplines created. Each of the petitioners who was already holding the  posts of Professor was not given the benefit of the upgraded  pay-scales, while the new incumbents recruited to the  newly created  post were  awarded the  revised  pay- scales. This led to disturbance in the inter se seniority in the cadre  of Professors.  In the  Writ  Petition  W.P.  No. 587/75  to   this  Court   it  was  contended  that  as  the petitioners fulfilled  the minimum  qualification prescribed for the post after upward revision of the pay-scales, denial of the  revised pay-scales  was discriminatory and violative of Article 14, and throughly arbitrary and unjustified.      On behalf  of respondents  it  was  asserted  that  the revised scale  was not  to be  automatically granted  to the petitioners-the existing holders, as the newly created posts in the  cadre of  Professor was not the same as the existing post, as  there was  marginal revision in the qualifications for the post of Professor in the revised scale.      The petitioner  in the  Review Petition No. 4/77 sought the review  of the judgment of this Court dated 3rd October,

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1975 in the Special Leave Petition No. 2339/75. He had filed a  writ   petition  in   the  High   Court  questioning  the correctness of  the selection  of respondent  No. 6  for the post of  Senior  Bio-Chemist  as  he  did  not  possess  the essential qualification, and the order removing him from the membership  of   the   post-graduate   faculty   of   Indian Agriculture Research  Institute. This  petition was resisted by the  respondents on the ground that neither ICAR nor IVRI was either  a ’State  or other authority’ within the meaning of the  expression in Article 12 of the Constitution. It was further contended that the Selection Committee had the power to  relax   the  essential   qualifications  pertaining   to experience, and  that the Committee consisted of experts who were  highly  qualified  persons,  able  at  evaluating  and assessing the relative merits of each of the candidates, and that, it  would be unwise to substitute expert’s decision by Court’s decisions.  The Writ  Petition was  dismissed by the High Court on the ground that ICAR being 202 a society  registered under  the Societies Registration Act, it was  neither a  ’State or  other  authority’  within  the contemplation of  Article 12.  It was  further held that the relationship between the petitioner and ICAR was governed by the rules  and the bye-laws of the Society and ICAR was free to fill  the post  of Senior  Bio-Chemist in  any manner  it liked, and  that as  the petitioner was not removed from the membership of the Faculty, but ceased to be a member, it was not necessary to hear him.      This Court upheld the decision of the High Court by its judgment in  S.L.P. No.  2339/75 and  also rejected R.P. No. 79/76.      The Petitioner  in Review  Petition  No.  80/76  sought review of  the judgment  in S.L.P. No. 702 of 1976 which was disposed of along with S.L.P. No. 2339/1975.      The appellant  in C.A.  No. 1043  of 1981  filed a writ petition in the High Court alleging that he was selected for the post  of  Senior  Computer  in  the  Indian  Agriculture Statistics Research  Institute, an  affiliate of  ICAR.  The ICAR set  up the  Agricultural Scientists Recruitment Board- ASRB which  framed rules  in 1977  and  decided  to  hold  a competitive  examination  in  1978  to  recruit  scientists. Selection was  to  be  made  by  a  competitive  examination comprising  a   written  test  carrying  600  marks  in  the aggregate and  viva-voce test  carrying 100  marks.  It  was further provided  that  anyone  to  be  eligible  for  being admitted in  the merit  list should also have the additional qualification of  at least  obtaining 40  marks in the viva- voce test.  The appellant  contended that he has secured 364 marks out of 600 in the written examination and 38 marks out of 100  in the  viva-voce test, and that the action of Board in  fixing   minimum  qualifying   marks  in  the  viva-voce examination and basing the final selection on this criterion lacked both  the authority  of law and rules. The High Court dismissed the Writ Petition in limine.      Allowing  the   Review  Petitions,  Writ  Petition  and Appesal: ^      HELD :  1. (i) In writ petition No. 587/75, the ICAR is directed by  a mandamus  to put the three petitioners in the revised scale  of Rs.  1100-1600 sanctioned  for the post of Professor effective  from the  day when  others selected  as Professors in  sister disciplines  were awarded  the revised scale of Rs. 1100-1600. [247 A]      (ii) In Special Leave Petition No. 2339/75, the ICAR is directed by  a mandamus to award to Dr. Y.P. Gupta the scale

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of Rs.  1800-2250 from  the  date  the  same  was  given  to respondent No.  6,  Dr.  S.L.  Mehta.  The  arrears  payable pursuant to the direction shall be paid within 3 months. Dr. Y.P. Gupta  to be  taken back  as a member of the Faculty of the post-graduate  school of  IARI  within  a  period  of  3 months. [247 B]      (iii) In  S.L.P. No.  702/76, it  is  directed  that  a special Assessment  Committee may  be set  up to examine the case of  Dr. T.S.  Raman for promotion to S-3 grade within a period of 3 months. [247 D]      (iv) In  C.A. 1043/81,  the ICAR, and ASRB are directed to prepare the merit list in respect of those candidates who were called for viva voce test, but were not included in the merit list  on the  aggregate of  marks obtained by them. If there is  a vacancy  and the appellant comes within the zone of selection he shall be 203 appointed. The appointment would be prospective and would be effective from the date of the appointment. [247 E-F]      2. (i)  Apart from the criteria devised by the judicial dicta, the  very birth  of ICAR  and its continued existence over half  a century and its present position would leave no doubt that  ICAR is  almost an  inseparable adjunct  of  the Government of  India having  an  outward  form  of  being  a Society. It could be styled as a Society set up by the State and therefore,  would be an instrumentality or agency of the Central Government  and therefore,  it is  ’other authority’ within the  meaning of the expression in Article 12, and the writ jurisdiction can be invoked against it. [216 B]      (ii) ICAR came into existence as an integral department of the  Government of  India and later on became an attached office of  the Central  Government. The  composition of  the ICAR as  evidenced by  Rule  3  could  not  have  been  more governmental  in   character  than  any  department  of  the Government. The  Governing Body  of the Society consist of a President of  the Society,  who is none other than a Cabinet Minister of  the Government  of India.  Other members of the Governing Body  are eminent scientists not exceeding nine in number to  be appointed  by the  President;  there  is  none outside the  Government in the Governing Body. Rule 98 makes it abundantly  clear that  the  Rules  of  the  Society  can neither be  altered nor  amended except with the sanction of the Government  of India.  Rule 100  shows  that  the  Rules became operative  after they were approved by the Government of India. The audited accounts of the Society along with the auditor’s report  thereon  were  to  be  placed  before  the Society at  its Annual General Meeting and also on the table of the  Houses of  Parliament. Rule  18  provides  that  the appointment to various posts under the Society shall be made in accordance  with the  Recruitment Rules  framed  for  the purpose by the Governing Body with the prior approval of the Government of  India. The  administrative and  the financial control of  the Government  is all  pervasive. The rules and bye-laws of  the Society  can be framed, amended or repealed only with the sanction of the Government of India. [219 E-F; 220 B-F]      Sabhajit Tewary v. U.O.I. [1975]3 SCR 616 distinguished and limited and U.P. Warehousing Corporation v. Vijay Narain [1980] 3 SCC 459, referred to.      3. The  guarantee of  equality  in  all  its  pervasive character enables this Court to remove discrimination and to restore fair play in action. [226 C]      The   instant   case,   is   a   glaring   example   of discriminatory treatment  accorded to  old  experienced  and highly qualified hands with an evil eye and unequal hand. No

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attempt was  made to  sustain the scales of pay for the post of Professor  on the  doctrine of classification because the classification of  existing incumbents as being distinct and separate from  newly recruited  hands with  flmsy change  in essential  qualification  would  be  wholly  irrational  and arbitrary. The  case of the petitioners for being put in the revised scale  of Rs. 1100-1600 from the date on which newly created posts  of Professors  in sister  disciplines in IVAI and other  institutes were  created and  filled  in  revised scale is unanswerable and must be conceded [226 B-D]      Randhir Singh v. U.O.I. [1982] 1 SCC 618, referred to.      4. The  moment the  High Court  held  that  it  had  no jurisdiction  to  entertain  he  writ  Petition,  it  became functus officio and therefore, its decision on the merit 204 of the contention is of no consequence and at any rate could not conclude  the matter. Now that it has been held that the writ petition  is maintainable  on the finding that ICAR and its affiliates are other authority within the meaning of the expression in  Article 12,  justice demands  that the  court must examine  the  contentions  on  merit.  The  preliminary objection over-ruled  and the  review petition allowed. [229 F-G]      5. It  is well-settled  that experience  to be of value and  utility   must  be   acquired  after   the  educational qualification  is  obtained  and  not  while  acquiring  the postgraduate qualification. [232 A]      In the  instant case, preparing thesis after graduation for acquiring  post graduate  degree would not count towards prescribed experience  qualification. In  the case  of  Ph.D degree awarded  on research  the situation may be different. [232 B]      6.  The   Court  must   look  with   respect  upon  the performance of duties by experts in their respective fields. However, the task of ushering a society based on rule of law is entrusted  to this  court  and  it  cannot  abdicate  its functions. Once  it is  most satisfactorily established that the Selection  Committee did  not have  the power  to  relax essential qualification pertaining to experience, the entire process  of   selection  of   the  6th   respondent  was  in contravention of  the established  norms prescribed  by  the advertisement and  power  of  the  Selection  Committee  and procedure for  fair and  just selection  and equality in the matter  of   public  employment  and  to  rectify  resultant injustice and establish constitutional value this Court must interfere. [234 D-E]      State of Bihar v. Dr. Asis Kumar Mukherjee [1975] 2 SCR 894, referred to.      In the  instant case,  the  first  Selection  Committee examined the  suitability of  seven candidates including the petitioner and  specifically recorded  its finding that none of the  candidates interviewed  or  considered  in  absentia including respondent  No. 6  who was  selected  at  a  later stage, fulfilled  all the essential qualifications laid down for the post. The Committee recommended that the post be re- advertised after  amplifying the  essential qualification in the matter  of experience, viz. 10 years research experience in the field of protein Chemistry’. The post was the post of Senior Bio-chemist. Initially experience required was in the field of Nutrition with particular reference to quantity and quality of  protein in food grains as evidenced by published work  while   the  amplified   essential  qualification  was research experience in the field of protein Chemistry. It is difficult to  efface the  impression that  the amplification was done  keeping in view the qualification which respondent

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No. 6  had. Moreover  respondent No. 6 appeared not to carry on research  in the  line of  Nutrition or protein Chemistry and therefore he did not fulfil the qualification at all and he could  not therefore  have even been called for interview by the Selection Committee. The Selection Committee also did not have the power to relax the essential qualification, for the post.  The selection  of respondent No. 6 is contrary to rules and  orders and  in violation  of prescribed norms. He was ineligible  for the post when selected and his selection and appointment  has to  be quashed and set aside. [230 C-G, 233 E-F, 234F]      7. The  High Court  was clearly  in error  in observing that either Dr. Raman (petitioner in R.P. No. 80/76) was not hopeful of  getting the job or he had some other reasons for not applying for the same and therefore his grievance cannot 205 be entertained.  This is  clearly contrary to record. He had applied earlier  and was entitled to be called for interview as noted  in the  proceedings. It  was obligatory  upon  the second Selection  Committee to  inform him to appear for the interview and  adequate steps should have been taken to give the intimation  because he was attached to the institute and was in active service of the institute and intimation to him would not  require any  herculean effort  on the part of the Committee. But he has been assessed thrice by the Assessment Committee for promotion to S-3 grade and found, wanting. The Institute shall  set up  a special  Assessment Committee  to assess  his  suitability  for  promotion  to  S-3  grade  by examining his  work from  1976. He  is not  entitled to  any further relief. [239 G-240A, 241 E]      8. A  combined reading  of Rules  13 and  14,  indicate that, it  is open  to the Agricultural Scientist Recruitment Board to  prescribe minimum  marks which the candidates must obtain at  the written  test before  becoming  eligible  for viva-voce test. After the candidate obtains minimum marks or more at  the written  test he  becomes  eligible  for  being called for viva-voce test, and he has to appear at the viva- voce test.  Neither Rule  13 nor  Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained  by  the  candidate  at  the  viva-voce  test.  The language of  Rule 14 clearly negatives any such power in the ASRB when  it provides  that after  the written  test if the candidate has  obtained minimum  marks, he  is eligible  for being called  for viva-voce  test and  the final  merit list would be  drawn up  according  to  the  aggregate  of  marks obtained by  the candidate  in written  test plus  viva-voce examination. [244 D-F]      In the  instant case,  (CA No.  1043/81) the additional qualification which  ASRB  prescribed  to  itself  that  the candidate  must   have  a  further  qualification  obtaining minimum marks  in the  viva-voce test does not find place in Rules 13  and 14.  If such  power is  claimed, it  has to be explicit and cannot be read by necessary implication for the obvious reason  that such deviation from the rules is likely to  cause   irrepearable  and  irreversible  harm.  Once  an additional qualification  of obtaining  minimum marks at the viva-voce test  is adhered  to, a  candidate who  may figure high-up in  the merit  list was likely to be rejected on the ground that  he has not obtained minimum qualifying marks at viva-voce test.  This list  prepared in contravention of the Rules cannot  be sustained.  However, it  is not possible at this late  stage to reject the entire selection and it would be equally  improper to  disturb the  selection of those who had been  selected and  appointed way back in 1978. If there is a  vacancy and  if the appellant comes within the zone of

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selection on  the aggregate  of marks  obtained by  him, his case shall  be considered  for appointment prospectively and not retrospectively. [244 G-H; 245 C; 246 D; G]

JUDGMENT:      ORIGINAL JURISDICTION : Writ Petition No. 587 of 1975            (Under article 32 of the Constitution)                             with                Review Petition No. 4 of 1977               (@SLP (Civil) No. 2339 of 1975 &                  Review Petition No. 79/76) 206                             and                Review Petition No. 80 of 1976         (Arising out of SLP (Civil) No. 702 of 1976)                             and                Civil Appeal No. 1043 of 1981      Appeal by  Special leave  from the  Judgment and  Order dated the  8th May,  1980 of  the Delhi  High Court in Civil Writ Petition No. 553 of 1980.      Yogeshwar  Prasad   and  Mrs   Rani  Chhabra   for  the Petitioner in WP. 587/75 & RP. No. 4/77      M.G. Ramachandran  for the Appellant in CA. No. 1043 of 1981.      Abdul Khader, Miss A. Subhashini and Girish Chandra for the Respondent in WP. 587/75.      K.G. Bhagat,  Addl. Sol.  General and Ms. A. Subhashini for the Respondent in RP. No. 4/77      D. Goburdhan  and C.V.  Subba Rao for Respondent in CA. No. 1043 of 1981.      B.N. Lokur, and C.N. Ratnaparkhi for Respondents 2-7 in WP No. 587 of 1975.      Judgment of the Court was delivered by      DESAI, J. In this group of writ petition, civil appeal, special  leave  petition  and  review  petitions;  a  common question  of   law  is  raised  whether  Indian  Council  of Agricultural Research  (‘ICAR for  short) and its affiliate. Indian Veterinary  Research Institute  (IVRI for  short) are either itself  the State or such other authority as would be comprehended in  the expression  ‘other authority in Art. 12 of the Constitution ?      Re: W.P. No: 587/75 :      Petitioner No.  1 was  Professor of  Animal  Pathology, petitioner No.  2  was  Professor  of  Animal  Genetics  and petitioner No. 3 was 207 Professor of  Veterinary Parasitology, all attached to IVRI. Six posts of Professors one each in Animal Pathology, Animal Genetics,   Veterinary   Parasitology,   Animal   Nutrition, Bacteriology and Physiology were created on the introduction of the  post-graduate wing  in IVRI in 1958. At the relevant time the  post of  Professor carried  the scale  of Rs. 700- 1250. Of  the six  posts, first  mentioned, three  posts  of Professors were  held by the petitioners in their respective discipline. On the introduction of the scales recommended by the University  Grants Commission, the pay scale attached to the post  of Professor in IVRI was revised to Rs. 1100-1600. After the upward revision during the year 1970-71, the cadre of Professors  in IVRI was expanded by creating six new post of Professors  in various  disciplines. Surprisingly, act of the petitioners,  who was already holding post of Professor, was not  given the benefit of the upgraded scale attached to the post  of Professor  while on  the  other  hand  the  new

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incumbent recruited  in the  newly created posts in the year 1970-71 were  awarded the  revised scale  of Rs.  1100-1600. This led to the disturbance in the inter se seniority in the cadre of  Professors and  manifested an  anomalous  position that the  old incumbents  of the posts of Professors such as petitioners, continued  in the  pre-revised scale of Rs 700- 1250 while  the new incumbents were put in the revised scale of Rs 1100-1600 both having the designation of Professor and there is  no appreciable  difference in  the  qualifications attached to the post. When this was brought to the notice of the authorities  concerned, the ICAR with the concurrence of the Ministry of Finance resolved as per decision dated April 6, 1972  to award  the revised  scale of pay attached to the post of  Professor to  the petitioners, but this was subject to the  condition that  it would  not be  automatic but  the existing incumbents  of posts  may be considered for revised scale along  with other suitable persons. It was implicit in the condition  prescribed that  the petitioners will have to stand in  competition with  others applications, if there be any, and  go through the hazard of a fresh selection for the post each  one  was  already  holding.  This  is  the  first grievance voiced  by the  petitioners in  the writ  petition contending that the petitioners were qualified for the posts of Professor and that each of them was holding the post from 1963, 1970  and  1970  respectively.  The  petitioners  made various representations  basing their  claim inter  alia  on fair play,  equality of  opportunity in the matter of public employment and  equal pay  for equal  work as  well  as  the provision contained  in Fundamental Rule 23. The petitioners also contend  that they  fulfil  the  minimum  qualification prescribed for  the post  after upward  revision of the pay- scale, and  they have the requisite experience and that they are performing the same or identical duties 208 as are  being performed  by newly  recruited  Professors  in sister disciplines  and that  denial to  them of the revised pay scales  for the  post  of  Professor  apart  from  being discriminatory  and  violative  of  Art.  14  is  thoroughly arbitrary and  unjustified. It  appears that pursuant to the decision  dated   April  6,   1972,  the   ICAR  issued   an advertisement on  May 21, 1974 inviting applications for the post of  Professor in  Animal Pathology, Animal Genetics and Veterinary Parasitology  in the  revised scale  of Rs. 1100- 1600. These  were the posts already held by petitioners. The advertisement  set   out   the   essential   and   desirable qualifications for  each post.  Petitioners contend that the duties pertaining  to the  post of Professor in the upgraded scale are  the same as performed by the petitioners and that this action  of inviting fresh applications for post already held by  the petitioners disclosed a cover attempt to remove the petitioners  from the  posts held  by  them  for  years. Petitioners further  contend that  only three  posts held by the  petitioners   have   been   advertised   inviting   the applications for  fresh recruitment  while there were others who were  holding posts  of Professors  in  the  pre-revised scale and  to whom  benefit of automatic upward revision was granted and this disclosed not only the bias of the ICAR but also subjected  the  petitioners  to  gross  discrimination. Serious allegations  of bias  and malafide  have  been  made against respondent No. 6, the Director of IVRI, and Director General of  ICAR, which  need not  be set  out here. It may, however, be  stated that  though the  various  functionaries working in  IVRI and  ICAR  are  highly  qualified  persons, professional rivalry  had  led  to  such  poisoning  of  the atmosphere and character assassination had become so rampant

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and the  environment had  become  so  suffocating  that  the Government of India had to appoint a Committee presided over by late  Shri P.D.  Gajendragadkar, retired Chief Justice of the Supreme Court with wide terms of reference which amongst others included  the recruitment  and personnel  policies of ICAR as  well as Institutes and Centres working under it and to suggest  measures for  their improvement.  It is  alleged that absolutely  incorrect, improper  and prejudiced entries are made  in confidential reports with a view to harming the career of  the persons who have fallen from the grace of the Director and  that therefore, the Court should lift the veil of the  so-called society  and peep  into the  realities  of life. The  petitioners accordingly prayed for an appropriate writ, order  or direction  to quash  the advertisement dated May  21,   1975  inviting  applications  for  the  posts  of Professors in three subjects already held by the petitioners and to  confirm the  petitioners in the aforementioned posts and to  give them  the benefit of the revised scale from the date from  which  it  was  given  to  Professors  in  sister disciplines and to quash 209 the adverse entries in the confidential reports of the three petitioners.  On   these  averments  petitioners  filed  the present writ petition under Art. 32 of the Constitution. Re : S.L.P. No. 2339/75 with R.P. No. 4/77 :      One Dr.  Y.P. Gupta filed Writ Petition No. 276 of 1972 in the  High Court  of Delhi  questioning the correctness of the order removing him as member of the faculty of the post- graduate school  of Indian  Agricultural Research  Institute (IARI for  short). Petitioner  Dr. Gupta also questioned the validity of  appointment of  Dr. S.L. Mehta respondent No. 6 in the  High Court to the post of Senior Bio-chemist in IARI and claimed  that he  was entitled  to be  appointed to that post.  This   petition  was   resisted  by  the  respondents primarily on the ground that neither ICAR not IVRI is either a State  or  other  authority  within  the  meaning  of  the expression in  Art. 12  of the Constitution. When the matter came up before the Division Bench of the Delhi High Court, a direction was  given that  in view  of the importance of the questions that  arise for determination in the writ petition before the  court and  in view of the various decision which have to  be reconciled,  the petition  should be  heard by a larger Bench. Pursuant to this direction, the matter came up before a  Bench of  five Judges. The larger Bench formulated four questions for its considerations :      "1.  Do the  petitioners have  legal right to challenge           the appointment of respondent 6 ?      2.   Has the  Director-General of  the  ICAR  acted  in           contravention of  any legal  obligation in  making           the appointment of respondent 6 ?      3.   Has the  said appointment  vitiated  by  the  mala           fides of Dr. Swaminathan and/or of Dr. Naik ?      4.   Was it  bad because  of the want of qualifications           of Dr. Mehta or non-compliance with the prescribed           procedure in making it ?"      The court  answered  the  first  question  against  the petitioner holding  that ICAR  is a society registered under the Societies Registration Act and it is neither a State nor other authority  within contemplation  of  Art.  12  of  the Constitution. The court further held that 210 the relation  between the petitioner and ICAR is governed by a contract and the rules and the bye-laws of the Society and ICAR was  free to  fill in  the post of Senior Biochemist in any manner  it liked. The court observed that the petitioner

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being a  mere employee,  he has  no legal  right against the employer  and  in  the  absence  of  any  statutory  element governing his employment, the relation is governed purely by a contract  and a  breach of  contract, if  any,  would  not permit a  declaration in  favour of the petitioner. Briefly, the court  held that  the remedy  by  way  of  writ  is  not available against  ICAR, On  the second  question the  court held that  the Director-General  owed no obligation or legal duty in making the appointment of the sixth respondent which can be  enforced by  a writ petition. Questions Nos. 3 and 4 were dealt  together and it was held that the pleadings were inadequate to  permit a  finding of  mala fide  and  in  the absence  of   proof  there  is  nothing  to  show  that  the appointment of  the sixth  respondent was vitiated either by mala fides  or by  non-compliance with procedure. Consistent with these  findings, the  writ petition  of Dr.  Gupta  was dismissed. Simultaneously,  the writ  petition filed  by one Dr. T.S.  Raman being Writ Petition No. 669/72 was dismissed by the common judgment.      Dr. Y.P.  Gupta filed  S.L.P. No.  2339 of 1975 in this Court. On  October 6,  1975, this Court directed a notice to be issued to the respondents to show cause why special leave to appeal  should not  by granted.  When the  matter came up again before this Court on July 21, 1976, Mr. Lokur, learned counsel appearing  for the ICAR stated to the Court that the respondent-council would  consider the  question  of  taking back the  petitioner as a member of the postgraduate faculty of IARI.  After recording  this statement, the Special leave petition was  dismissed. Petitioner  Dr. Gupta  filed Review Petition No.  79 of  1976 requesting the Court to review its order dismissing  the special  leave petition.  This  review petition was  rejected on October 27, 1976. As second review petition was  not barred  at the  relevant time,  Dr.  Gupta filed Review Petition No. 4/77 which is directed to be heard in the  present group  of appeal,  writ petition and special leave petition.      Re :  R.P. No.  80 of  1976.: Dr. T.S. Raman whose Writ Petition No.  669 of 1972 was heard along with Writ Petition of Dr.  Gupta and  which was  also dismissed  by the  common judgment, filed  Special Leave  Petition No.  702 of 1976 in this Court.  This petition  was dismissed  by the  Court  on August 30, 1976. Dr. T.S. Raman filed Review Petition No. 80 of 1976 which is being heard in this group. 211      Re: C.A. No. 1043/81: Appellant Dr. Om Prakash Khauduri filed Writ  Petition No.  553 of  1980 in  the High Court of Delhi alleging  that he  was selected for the post of Senior Computer  with   Indian  Agricultural   Statistics  Research Institutes, and  affiliate of ICAR. ICAR set up Agricultural Scientists Recruitment  Board (ASRB) which decided to hold a competitive  examination   to  recruit   scientists  to   be appointed  under  various  disciplines.  ICAR  framed  rules setting out  the terms  and conditions  for admission to the competitive examination.  Appellant applied for admission to the competitive  examination  in  ’Agricultural  Statistics’ discipline. The  written test  was  held  from  1st  to  4th February, 1978.  The Board  incharge of  the  selection  and appointment on  the comparative  merits as  evidence by  the performance  in   the  written   examination   selected   20 candidates including  the appellant  as having  obtained the prescribed qualifying  marks for  the purpose  of viva  voce examination which  was held  on April  10th and  11th, 1978. After the  viva voce  test, 13  candidates were  declared as successful and were offered appointment as scientists in the discipline ’Agricultural  statistics’. The  appellant failed

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to qualify  for the  same. According  to the  appellant,  21 vacancies remained  unfilled. Appellant contends that he had secured 364  marks out of 600 in the written examination and 38 marks  out of  100 in  the viva  voce test. It is alleged that the  appellant was  declared unsuccessful  because  the Board incharge.  of the examination has by itself determined without any  authority that anyone who obtained less than 40 marks at the viva voce examination would not be eligible for selection for the posts. It is therefore, contended that the action of  the Board  in fixing  minimum qualifying marks in the viva  voce examination and basing the final selection on this arbitrarily fixed criterion lacks both the authority of law and  rules and  that the Board has acted arbitrarily and without the  authority of  law. Appellant  accordingly  made representations but failed to evoke a sympathetic reply, and therefore, the  appellant filed  a writ petition in the High Court of  Delhi which  was dismissed in limine on the ground that the  writ  petition  against  the  respondent  was  not maintainable. Hence this appeal by special leave.      Ordinarily one  would sincerely  deplore the  delay  in disposal  of   a  problem  brought  before  the  Court;  but occasionally, one  comes across  a case  in which  the sheer passage of  time and  the fast removing scenario of changing pattern of law resolves the dispute to some extent.      Mr. Lokur  appearing  for  ICAR  raised  a  preliminary objection 212 that ICAR  is not  an agency or instrumentality of the State and therefore  it is  not  comprehended  in  the  expression ’other authority’  within the  meaning of  the expression in Art. 12 of the Constitution and therefore the High Court was fully  justified   in  throwing  out  the  petition  at  the threshold. Mr.  Lokur  directed  a  frontal  attack  drawing sustenance from  the decision  of Delhi High Court that ICAR being a  Society registered under the Societies Registration Act and being neither a State nor other authority within the contemplation of  Art. 12  nor  an  instrumentality  of  the State, writ jurisdiction of the High Court cannot be invoked against it.  Sabhajit Tewary v. Union of India & Ors was the sheet anchor of Mr. Lokur’s extensive submissions because in that case  a Constitution  Bench presided  over by  the then Chief Justice  ruled that  the  Council  of  Scientific  and Industrial  Research,   a  Society   registered  under   the Societies Registration  Act, was  neither a  State nor other authority within the contemplation of Art. 12 and therefore, the writ  petition was  held not  to be maintainable against it. And  even though  this matter  had become  part-heard in 1980 and  the hearing was resumed in 1983 before a different Bench, the  vigour of the sustained attack was not the least dimmed even  though the law expanding the width and ambit of the expression  ’State’ and ’other authority’ in Art. 12 had taken strides culminating in Ajay Hasia etc. v. Khalid Mujib Sehravardi &  ors.  etc.(2)  And  Mr.  Lokur  continued  his submission  with  unabated  fury  even  though  the  learned Solicitor General Shri K. Parasharan appearing for the Union of India  fairly conceded  that in view of the circumstances disclosed in  the case and the trend of the decisions, it is not possible  to contend  that ICAR  and its affiliates IVRI and   IARI    would   not    be   other    authority   being instrumentalities  of  the  State  and  against  which  writ jurisdiction could be invoked.      A very  brief resume  of the history of ICAR commencing from its initial set up and its development into its present position would  show that  as a  matter of  form,  it  is  a society registered  under the Societies Registration Act but

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substantially  when   set  up  it  was  an  adjunct  of  the Government of  India and  has not  undergone any note worthy change. On  the advent  of the provincial autonomy under the Government of  India Act,  1919, ’agriculture’  and  ’animal husbandry’ came under the heading ’transferred subject’ with the result  that they came within the exclusive jurisdiction of the Provincial Government. Development of agriculture and research in agriculture 213 became the responsibility of the Provincial Government. Even then a  Royal Commission  on agriculture  was constituted in 1926 to  enquire into  the agricultural set up and the rural economy of  the  country  and  to  make  recommendations  to consider what  firm steps  are necessary  to be taken by the Central Government  in this  behalf The  Commission  in  its report recommended  the setting-up  of Imperial  Council  of Agricultural  Research.  Acting  upon  this  recommendation, Government of  India sent  a telegram  to the  Secretary  of State On  April 24,  1929  informing  the  latter  that  the process of  setting up  of the Council is under way and that when set  up Council  would be  a Society.  On May  9, 1929, Secretary of  State approved  the proposal of the Government of India  subject to  variations mentioned  therein. By  its Resolution  dated  May  23,  1929,  the  Central  Government directed that  Imperial  Council  of  Agricultural  Research should be  registered as a Society under the Registration of Societies Act,  XXI of 1860. The Resolution further provided that with  respect to the grant to be made to the Council to meet the  cost of  staff, establishment etc., the Government of  India   decided  that   for  reasons  of  administrative convenience,  it  should  be  in  the  same  position  as  a department of  the  Government  of  India  Secretariat.  The Imperial Council of Agricultural Research was set up in June 1929.  A   direction  was   also  given  that  the  research institutes were  to be  maintained by  the Council. In their counter-affidavit filed  in the  High Court  of Delhi it was conceded in  paragraph  27  that  the  Imperial  Council  of Agricultural Research should in future be an attached office and not  the department  of the  Government to  be  entirely manned by  Government-staff and the secretariat staff of the Council was  to be  paid from  the grant  to be given by the Government  for   its  administration   and  they  would  be Government servants  and the Secretariat would be department of  the  Government  of  India.  In  July,  1929,  ICAR  was registered as  a Society  with its office in the Secretariat as an  attached office of the Secretariat. By the Resolution dated August 4, 1930, Government of India  directed that for reasons of  administrative convenience "the Governor-General in Council  has now,  decided that  the Imperial  Council of Agricultural Research  Department, as the Secretariat of the Council will  henceforth be  designated, should be a regular department of  the Government of India Secretariat under the Hon’ble Member  incharge of  the  Department  of  Education, Health and Lands". A note was submitted on December 29, 1937 to the  then Viceroy  concerning the  status and position of the ICAR  as a  Department of the Government in which it was recommended that  ICAR should  not only  be maintained  as a distinct entity  independent of  the Government of India and with a view to achieving 214 this position,  the office  of the ICAR should not in future be a  Department of the Government of India but should be an attached office.  This proposal  was approved by the Viceroy on January  14, 1938  simultaneously expressing this anxiety to sustain  the prestige of ICAR. The next step is one taken

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by the  Resolution  dated  January  5,  1939  by  which  the Government of India modified the status of the ICAR from the Department of  the Secretariat  to one of an attached office of the  Government of  India. A  letter was addressed to the High Commissioner  for India  in London  on January 14, 1939 intimating to  him that  the Secretariat  of the  ICAR  will cease to be a department of the Government of India and will be an  attached office  under the  Department of  Education, Health and  Lands with  effect from  January 15,  1939. Till then recruitment  to various  posts in ICAR was made through Federal  Public  Service  Commission  and  this  was  to  be continued even  after the change in the status of ICAR as an attached office  as evidenced by the letter dated August 24, 1938 by  the Joint  Secretary to  Government or India to the Federal Public  Service Commission. A bill was introduced in the Central  Legislature styled as the "Agricultural Produce Cess Bill,  1949".  The  statement  of  object  and  reasons accompanying the  bill recited  that the  Central Government have provided  grants to  the tune  of Rs.84  lakhs for  the expenditure of  the Council and took notice of the fact that the Council  has practically  no source of income other than the contribution  from the  Central  Revenue  which  may  be unstable depending upon the state of finances of the Central Government. It  was further  observed that in order to place Council on  a more  secured financial  position it  has been decided to  levy a cess at the rate of 1/2% on  the value of certain agricultural  commodities and  the proceeds  for the proposed cess  are estimated  to amount  in a normal year to about Rs.  14 lakhs.  The bill was moved. In the debate upon the bill,  a statement  was made on behalf of the Government of India  that the  Central Legislature will retain its full right of  interpellation and  of moving resolutions and will still vote  on the grant of the permanent staff, and some of the activities of the  Council. In other words, an assurance was given  that the  Central Legislative  Assembly will have positive control over the affairs of the Council to the some extent and  degree when  it was  a Department or an attached office  of  the  Government  of  India.  On  the  advent  of independence. The Imperial Council of Agricultural Research. With effect  from April 1, 1966, administrative control over IARI and  IVRI and  other institutes was transferred to ICAR simultaneously  placing   the  Government   staff   of   the institutes at  the disposal  of ICAR  as on foreign service. This is evidenced by a communication dated 215 April 19,  1966 addressed  by the  Ministry of Agricultural, Food,  Community,   Development  and   Cooperation  to   the Directors of  central Research  Institutes.  An  option  was given to  the  members  of  the  staff  of  the  Institutes, administrative control  of which was transferred to ICAR and the date  for exercising  the option  was  extended  by  the communication dated  November 9,  1966. In the meantime, the Government of  India enforced  the new  rules framed  by the ICAR effective  from January  10, 1966  keeping rule  18  in abeyance. With  the  change  in  the  status  of  the  ICAR, Department of  Agricultural Research  and Education  (’DARE’ for short)  was set up in the Ministry of Agriculture and it came into  existence on  December 15,  1973. This Department was set  up with  a view  to providing  necessary Government linkage with  ICAR. The major function of the Department was to look  after all  aspects  of  agricultural  research  and eduction involving  coordination between  Central and  State agencies; to attend to all matters relating to the ICAR; and to attend  to all  matters concerning the development of new technology in  agriculture, animal  husbandry and fisheries,

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including such  functions as  plant and  animal introduction and exploration,  and soil and land use survey and planning. By this  very Resolution,  the Director  General of ICAR was concurrently designated  as Secretary to Government of India in the  DARE. The  position of  ICAR was  clarified  to  the effect that  in the  reorganised set-up,  the ICAR will have the autonomy  essential for  the effective  functioning of a scientific organisation  and deal.  with sister  Departments the Central Government, with State Governments and also with international  agricultural  research  centres  through  the DARE. Rule  18 of  the ICAR rules which was kept in abeyance on January  10, 1966  was  brought  into  operation  in  its entirety effective  from April  1, 1974 as per communication dated March  30, 1974  by the Ministry of Agriculture to the Secretary,  ICAR   The  consequence   of  Rule  18  becoming operative was  that the  Secretariat of ICAR ceased to be an attached office  of the Ministry of Food and Agriculture and the  Society   shall  function   as  ’wholly   financed  and controlled by  the Society’. This last sentence hardly makes any sense. Till Rule 18 was kept in abeyance, recruitment to ICAR was done through the Union Public Service Commission as evidenced by  the  letter  dated  August  24,  1938  of  the Government of India to the Secretary, Federal Public Service Commission,  Simla.   Rule  18   as  stated  earlier  became operative from  April 1,  1974. Rule  18 provides  that ’the Society  shall   establish  and  maintain  its  own  office, Research Institutes and Laboratories. The appointment to the various posts  under the  Society’s establishment  was to be made in accordance with the Recruitment Rules framed for the purpose 216 by the governing body with the approval of the Government of India".      Apart from  the criteria  devised by  the judicial dict the very  birth and  its continued  existence  over  half  a century and  it present position would leave no one in doubt that ICAR is almost an inseparable adjunct of the Government of India having an outward form of being a Society, it could be styled  as a  Society set  up by the State and therefore, would be an instrumentality of the state.      ICAR started as a Department of the Government of India having an  office in  the Secretariat  even though  it was a Society registered  under the Societies Registration Act. It was wholly  financed by  the Government of India. Its budget was voted  upon as  part of  the expenses  incurred  in  the Ministry of  Agriculture. Even  when its  status underwent a change, it  was  declared  as  an  attached  office  of  the Government of  India. The control of the Government of India permeates through  all its  activities and it is the body to which  the   Government  of   India   transferred   Research Institutes set  up by  it. In  order to  make it financially viable, a  cess was levied meaning thereby that the taxation power of  the State was invoked, and the proceeds of the tax were to be handed over to ICAR for its use. At no stage, the control of  the Government  of India ever flinched and since its inception  it was setup to carry out the recommendations of the Royal Commission on Agriculture. In our opinion, this by itself is sufficient to make it an instrumentality of the State.      It was however urged that The Council of Scientific and Industrial Research  (CSIR’ for  short) a society registered under the Societies Registration Act and having an identical set up  as well  as constitution,  was held  not  to  be  an instrumentality of the State or ’other authority’ under Art. 12. In Sabhajit Tewary’s case, this Court held that the CSIR

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did not  have a statutory character like the Oil and Natural Gas  Commission,   or  the  Life  Insurance  Corporation  or Industrial  Finance   Corporation,  and  it  was  a  society incorporated  in  accordance  with  the  provisions  of  the Societies Registration Act. The fact that the Prime Minister is the president or that the Government appoints nominees to the Governing  Body or that the Government may terminate the membership  will  not  according  to  this  Court  establish anything more  than  the  fact  that  the  Government  takes special care  that the  promotion, guidance and co-operation of scientific  and industrial  research, the institution and financing   of   specific   researches,   establishment   of development and assistance to special institions 217 for  scientific   study  of  problems  affecting  particular industry in  a trade,  the utilisation  of the result of the researches conducted  under  the  auspices  of  the  Council towards the  development of  industries in  the country  are carried out  in a  responsible manner, and these aspects are not sufficient  to reach the conclusion that the Society was an agency  or instrumentality  of the Government. This Court also referred  to some  decisions which  have held  that the companies incorporated  under  the  Companies  Act  and  the employees of  these companies  do not  enjoy the  protection available to  Government servants  as contemplated  in  Art. 311. This  Court accordingly  concluded that  CSIR is not an instrumentality  of   the  Government  comprehended  in  the expression ’other  authority’ within  the meaning of Art. 12 of the  Constitution, and  the writ  jurisdiction cannot  be invoked against  it. Much  water has  flown down  the Jamuna since the dicta in Sabhajit Tewary’s case and conceding that it is  not specifically  overruled in  later  decision,  its ratio is  considerably watered  down so  as to be a decision confined  to   its   own   facts.   The   case   is   wholly distinguishable on  the facts  apart from  the later indicia formulated by  the Court  for ascertaining whether a body is ’other authority’  within the  meaning of  Art. 12.  A  mere comparison of  the history  of ICAR  as extensively  set out herein before  and the setting-up of CSIR would clearly show that ICAR  came  into  existence  as  a  department  of  the Government, continued  to  be  an  attached  office  of  the Government even  though it  was registered  as a society and wholly financed  by the  Government and  the taxing power of the State  was invoked  to make it financially viable and to which  independent   research  institutes   set  up  by  the Government were  transferred. None  of  these  features  was present in  the case  of CSIR and therefore, the decision in Sabhajit Tewary’s  case would render no assistance and would be clearly distinguishable.      The ratio, if any, of the decision in Sabhajit Tewary’s case was  examined by  a Constitution Bench of this Court in Ajay Hasia’s  case and it was held that that decision is not an authority  for the  proposition that a society registered under the  Societies Registration  Act, 1860  can  never  be regarded as  an authority within the meaning of Art. 12. The Court  further  held  that  having  regard  to  the  various features enumerated  in the  judgment in  Sabhajit  Tewary’s case, the  conclusion was  reached that  the CSIR was not an agency of  the Government,  but the  Court did  not rest its conclusion on  the sole  ground  that  CSIR  was  a  Society registered under  the Societies  Registration Act, 1860, and on the contrary proceeded to consider various other features of the  Council for  arriving at  the conclusion that it was not an agency of the Government and therefore, it was not an authority for the

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218 proposition that  a society  registered under  the Societies Registration  Act   for  that  reason  alone  would  not  be comprehended in  the expression  ’other authority’.  In Ajay Hasia’s case,  this Court after taking note of the decisions in Ramana  Dayaram Shetty  v. The  International Airport  of India &  Ors.(1) and  U.P. Warehousing  Corporation v. Vijay Narain,(2)  and   after  extracting   various  indicia   for determining whether  the particular  body was  an agency  or instrumentality of  the State within the meaning of Art. 12, proceeded  to   examine  whether   the  society   which  had established Regional Engineering College, Srinagar and which was registered  under the  Jammu &  Kashmir Registration  of Societies Act,  1898 was an instrumentality or agency of the State and  would be  comprehended in  the expression  ’other authority’ in Art. 12. In this connection the Court observed as under:           "It is  in the  light of  this discussion  that we      must now  proceed to examine whether the Society in the      present case  is  an  "authority"  falling  within  the      deintion  of   "state"  in   Article  12.   Is  it   an      instrumentality or  agency  of  the  Government  ?  The      answer must  obviously be in the affirmative if we have      regard to  the Memorandum  of Association and the Rules      of the  Society. The  composition  of  the  Society  is      dominated  by  the  representatives  appointed  by  the      Central Government  and  the  Governments  of  Jammu  &      Kashmir Punjab,  Rajasthan and  Uttar Pradesh  with the      approval of the Central Government. The monies required      for running  the college  are provided  entirely by the      Central  Government  and  the  Government  of  Jammu  &      Kashmir and even if any other monies are to be received      by the  Society, it  can be done only with the approval      of the  State and the Central Governments. The Rules to      be made  by the  Society are  also required to have the      prior approval of the State and the Central Governments      and the  accounts  of  the  Society  have  also  to  be      submitted to  both the  Governments for  their scrutiny      and satisfaction.  The Society  is also  to comply with      all such  directions as  may be  issued  by  the  State      Government with  the approval of the Central Government      in respect  of any  matters dealt with in the report of      the Reviewing  Committee. The  control of the State and      the Central Governments is indeed so deep and pervasive      that no  immovable  property  of  the  Society  can  be      disposed 219      of in  any manner  without the  approval  of  both  the      Governments. The State and the Central Governments have      even the  power to appoint any other person  or persons      to be  members of  the Society  and any  member of  the      Society other  than a  member representing the State or      the  Central   Government  can   be  removed  from  the      membership of  the Society by the State Government with      the approval  of the  Central Government.  The Board of      Governors,   which    is   in    charge   of    general      superintendence, direction  and control  of the affairs      of Society  and of  its income  and  property  is  also      largely controlled  by nominees  of the  State and  the      Central Governments.  It will  thus be  seen that  that      State Government  and by  reason of  the provision  for      approval,  the   Central  Government  also,  have  full      control of  the working of the Society and it would not      be incorrect  to say  that  the  Society  is  merely  a      projection of the State and the Central Governments and

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    to use  the words  of Ray, C.J. in Sukhdev Singh’s case      (supra), the voice is that of the State and the Central      Governments and the hands are also of the State and the      Central Governments.  We must, therefore, hold that the      Society is  an instrumentality  or agency  of the State      and the  Central Governments  and it  is an ’authority’      within the meaning of Art. 12."      Applying the  criteria, there is little doubt that ICAR is an  instrumentality or  the agency  of the State. It came into existence  as an  integral department of the Government of India  and later  on became  an attached  office  of  the Central Government. The composition of the ICAR as evidenced by Rule 3 could not have been more governmental in character than any department of the Government. The Governing Body of the Society would consist of a President of the Society, who is none other than the Cabinet Minister of the Government of India for  the  time  being  incharge  of  Agriculture;  the Director-General, a  distinguished scientist to be appointed by Government  of India  would be the Vice-President and the Principal  Executive   Officer  of   the  Society.   He   is concurrently appointed  as Secretary to Government of India. Other members  of the  Governing Body are eminent scientists not  exceeding  nine  in  number  to  be  appointed  by  the President that  is the  Minister; not more than five persons for their  interest in  agriculture to  be appointed  by the President that  is the Minister, three members of Parliament and Additional  Joint Secretary  to the  Government of India in the  Department of  Agriculture to  be nominated  by that Department, one person, appointed 220 by  the   Government  of  India  to  represent  the  Central Ministry/Department concerned with the subject of Scientific Research and  the Financial Adviser of the Society. There is none outside  the Government  in the Governing Body. Rule 91 deals with  the finances  and funds  of the  Society and the sources of  income are  the cess  levied by  the  Government under the  Agricultural Produce  Cess Act  and the recurring and non-recurring  grants from  the Government of India. The Rules of the Society were initially framed by the Government of India and Rule 98 makes it abundantly clear that they can neither be  altered nor  amended except with the sanction of the Government  of India.  Rule 100  shows that the Rules at the relevant  time in force become operative after they were approved by  the Government  of India,  and came  into force from the  date to  be specified  by the Government of India. Rule 93 provides for audit of the accounts of the Society by such person  or person  as may  be nominated  by the Central Government. Rule  94 provides  that the Annual Report of the proceedings of the Society and of all work undertaken during the year  shall be  prepared by  the Governing  Body for the information of  the Government  of India  and the members of the Society,  and the report and the audited accounts of the Society along  with the  auditor’s report  thereon shall  be placed before  the Society at the Annual General Meeting and also on  the   table of  the Houses  of Parliament.  Rule 18 provides that the appointment to the various posts under the Society shall  be made  in accordance  with the  Recruitment Rules framed  for the purpose by the Governing Body with the prior approval  of the Government of India but prior thereto it  was   by  the   Union  Public  Service  Commission.  The administrative and  the financial  control of the Government is all  pervasive. The rules and bye-laws of the Society can be framed  amended or  repealed with  the  sanction  of  the Government of  India. The  case before  us is  much stronger than the  one considered  by this  Court in the case of Ajay

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Hasia and  therefore, the conclusion is inescapable that the Society is  an instrumentality  or  agency  of  the  Central Government and therefore, it is ’other authority’ within the meaning of  the  expression  in  Art.  12.  As  a  necessary corollary the  writ jurisdiction  can be  invoked against it and therefore  the decision  of Delhi  High  Court  must  be reversed  on   this  point.  The  preliminary  objection  is accordingly overruled.      Having rejected  the preliminary objection, we must now proceed to  examnine the  contention raised in each petition and appeal on merits.      Before we proceed to examine the contentions on merits, 221 unhappy though  it may appear to be, and howsoever one would like to  avoid reference  to it,  it is  inevitable that one must take  note of  the deplorable  state of  affairs in the administration of  the affairs  of ICAR  and the uncongenial atmosphere  in   which  the  highly  qualified  agricultural scientists in this country have to work. ICAR was set up for undertaking  Scientific   Research  in  Agriculture,  Animal Husbandry and allied subjects on which the entire economy of this  country   revolved  till   the  advent  of  industrial revolution. It was set up with a view to imparting speed and momentum to  research in  agriculture and allied subjects so that the country may move from the middle ages to the modern methods in agricultural technology. Unfortunately, since its inception, the  domestic atmosphere has not proved congenial to the  flowering of the genius of the country’s best talent in agricultural  research. This came to light when on May 5, 1972, newspapers  all over  the country  flashed the  tragic news that  a young  agricultural scientists,  Dr. V.H. Shah, who was  working as  Senior Agronomist and Associate Project Coordinator in  the IVRI  had committed  suicide by  hanging himself in  his residence  the previous  night. There  was a commotion in  the Parliament  and during  the debate  in the House,  Members   of  Parliament   regretfully  referred  to previous suicides  committed by agricultural scientists, one such being  of Dr. M.T. Joseph, Teaching Assistant, Division of Entomology,  IARI who  had committed  suicide on  January 5,1960. These  were not  stray incidents  but the outcome of persecution,  torture  and  harassment  emanating  from  the polluted environment  in ICAR  and its  affiliates. The then Minister for  Food and  Agriculture stated in the Parliament that  the  Government  of  India  was  not  happy  with  the procedure  of   selection  of  personnel  in  the  ICAR  and proceeded to  inform the  House that  they have not been too happy  with   the  present   system  of   recruitment  which necessitates  a  scientist  applying  for  posts  and  being interviewed by  selection committees  throughout his working career  because  the  system  inevitably  provides  frequent occasions for  disappointment leading  to  frustration.  Two decades thereafter  we are  constrained  to  note  that  the things have not improved at all. The ICAR and the Institutes seem to  be so  backward looking  in their  approach to  the members of  the staff  that as  late as in 1983 considerable time of  this Court  was frankly  wasted in disposing of the preliminary objection  on behalf  of the ICAR that it is not amenable to this Court’s writ jurisdiction which would imply that they  have skeletons to hide and shun their exposure to the Court’s examination of the internal affairs. To continue the  narrative,   a  committee   was  appointed   under  the Chairmanship of  Shri  P.B.  Gajendragadkar,  retired  Chief Justice of India and Vice-Chancellor, University of 222 Bombay and  at the  relevant time  Chairman, Law  Commission

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with wide  terms of reference inter alia to enquire into the recruitment policies  of ICAR  and to review the recruitment and personnel  policies  of  ICAR.  Institutes  and  Centres working  under   it  and   to  suggest  measures  for  their improvement. This Committee submitted its Report and we take note of only one of its findings which reads as under:      "All these  complaints  have  been  echoed  by  several      scientists who met the Committee. In the opinion of the      Committee these  complaint  have  some  substance.  The      Panel of  Advisers also  hold  the  same  opinion.  The      Committee is  of the view that most of these complaints      are  due   to  improper   working  conditions   in  the      Divisions. A  scientist belongs  to a Division where he      carries out  his work.  The atmosphere  in the Division      and the  Institute  should  be  conducive  to  research      activity."(3)           (emphasis supplied)      At another  stage, the Committee has observed that: ’in the present  circumstances where  a crisis  of character and confidence seems to have overtaken the entire administration of  the  ICAR,  we  think  it  is  absolute  necessary  that recruitment of personnel in all the Institutes will the ICAR should revert to the UPSC ’. The Committee made it clear, it made this  recommendation, because  it  was  satisfied  that there is  obvious dissatisfaction with the recruitments made from 1966  onwards and the Report when browsed through would leave an  ineffaceable impression  on the  redder  that  the Committee was  dissatisfied with internal atmosphere in ICAR and that  there was  an amount  of dissatisfaction about the recruitment policy  and that it was such a perceived reality that it would be idle to ignore the same. Even the Director- General who  is concurrently  also the Secretary to the DARE in charge  of ICAR  conceded before  the Committee  that  it would be  better  if  for  some  time,  the  recruitment  in entrusted to  some outside  agency.(2) In  Chapter XI of the Report, the Committee noted that the complaints made against the  Head   of  the   Division  about  not  giving  adequate facilities for  work and the lack of academic atmosphere and an absence  of domestic  approach permitting free discussion on research  projects and  results obtained were genuine and they required to be remedied. There is further 223 the recommendation  with regard  to  vertical  structure  of scientists and  the scales of pay attached to each cadre. It is unhappy  to note  that things  have hardly improved since the Report  of the  Committee  because  in  the  first  writ petition, petitioners  were again to be exposed to hazars of a fresh  selection and  the complaint  of Dr.  Y.P. Gupta is essentially the  same as  noticed and  commented upon by the Committee.      Re: W.P.  No.  58/75  :  In  this  writ  petition,  the substantial  grievance   is  that   even  though  the  three petitioners were  respectively holding the post of Professor in  Animal   Pathology,  Animal   Genetics  and   Veterinary Parasitology from 1963, 1970 and 1970 respectively, when the pay-scale for the post of Professor on the recommendation of the  University   Grants  Commission   underwent  an  upward revision to  Rs. 1100-1600,  the ICAR instead of straightway granting the  scale to  the petitioners,  the holders of the posts of  Professor, proceeded  to issue an advertisement on May 21,  1974 inviting  fresh applications  for the  post of Professor in  the three  subjects in  which the  petitioners were   already   holding   the   post   of   Professor   and simultaneously appointed  some others  in different subjects and disciplines  as Professors  and gave  them  the  revised

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scale while  the petitioners,  were left  to languish in the old scale.  According to  the petitioners,  apart from gross discrimination in the matter of equal pay for equal work the direct consequence  of this  unfair and  arbitrary action of the third  respondent was  the adverse  affectation  in  the seniority in  the cadre of Professors because those who were appointed in  the revised  scale scored  a  march  over  the petitioners who  continued  to  languish  in  the  preserved scales. Petitioners  contend that the situation is recreated which was  adversely commenced  upon by  the Minister in the Parliament that  the  recruitment  policy  adopted  by  ICAR necessitates a  scientist  to  apply  for  posts  and  being interviewed by selection committee with attendant hazard and consequent frustration.  Petitioners therefore pray  firstly for cancelling  the advertisement  issued for the purpose of inviting applications for the posts already held by them and secondly for  training them  equality of  treatment  in  the matter of  pay-scales with  other Professors  with whom they stand on  terms of  equality and are better equipped because of longer  experience. Petitioners  say that  in 1970-71 six posts of  Professor were created in the revised scale of Rs. 1100-1600 at  IVRI in  the discipline  of  Poultry  Science, Poultry Pathology, Veterinary Public Health (Calcutta Centre of IVRI),  Biochemistry, Epidemiology  and Veterinary Public Health (IVRI  Centre). The  revised scale was sanctioned for these newly created posts pursuant to the reccom- 224 mendation of  the University  Grants Commission.  Let it  be made distinctly clear that the revised scales were meant for the post  of Professor  in IVRI  not for  the  post  in  any particular discipline.  Petitioners were  holding  posts  of Professor in  IVRI, and  therefore the  petitioners  contend that the  posts of  Professor held by them would be governed by the  revised scale  effective from  the date on which new posts were  created and  filled in,  in the  revised  scale. Respondents’  response  to  this  contention  is  that  ICAR informed the  Director of  IVRI  as  per  its  letter  dated January 20;  1971 that three posts of Professor in the scale of  Rs.   1100-1600  in  Veterinary  Bacteriology,    Animal Nutrition and  Animal Genetics  have been sanctioned subject to the  condition  that  the  existing  posts  of  Professor obviously in  the same  disciplines in the scale of Rs. 700- 1250 stand  abolished. Shorn of embellishment, it would mean that the  posts in  the aforementioned  three subjects shall henceforth carry  the revised  scale of  Rs. 1100-1600.  The respondents  assert  that  the  revised  scale  was  not  be automatically granted  to the  existing holders of the posts but they  would be  considered  with  other  applicants  for appointment in  the higher  scales, if  they  are  otherwise suitable. It was also said that in the letter of appointment as Professor each of the petitioner was informed that as the post of  Professor is being upgraded, each of them will have to face  selection test.  Letter of  appointment dated March 25, 1970  in respect  of petitioner No. 2 though relied upon was not  on the  record but  when produced  in the course of hearing with an affidavit, it belied the statement. There is nothing  in  the  letter  of  appointment  of  each  of  the petitioners that  then the  revised scale  for the  post  of Professor will be introduced, the incumbent of the post will have to  face a fresh selection. It is not clarified whether the three  posts of  Professor in  Veterinary  Bacteriology, Animal nutrition  and Animal  Genetics  in  the  pre-revised scale were  already filled in and whether the holders of the posts got  the revised  scale  without  any  fuss  of  fresh selection on  the part  of  the  respondents.  The  counter-

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affidavit on  behalf of respondents Nos. 1,2,3,4,5 and 11 is conspicuously silent on this point. However, it is contended that  the   qualifications  for   post  of  Professor  while sanctioning the revised scale was altered in as much as when the post of Professor carried the scale of Rs. 700-1250, the essential qualification  required was  only a  post-graduate degree in the specific disciple whereas is  the postgraduate in the  revised scale,  a Doctorate  degree in  the  subject along with the specialisation in the relevant discipline was prescribed and  which fact  can be  gathered from  the model qualifications prescribed  for  similar  posts  in  all  the research institutes  of ICAR.  It was  further asserted that earlier the minimum experience required was about 225 5 years  whereas it was revised to 7 years. Nothing would be more misleading  than this  eye was performance which really hides the  true intendment  namely, to  exclude the  present incumbents of the posts of Professor and to expose them to a competition with  same rank outsiders who may as in the case of Dr.  S.L. Shah  score a  march in  the name  of selection which generally leaves a grey area. Petitioners Nos. 2 and 3 do hold  a Doctorate  in their  respective  discipline  with experience extending  more than  7 years  in the discipline. Petitioner No.  1, who  does not hold a Doctorate has to his credit  M.R.C.V.S.   which  has   been  recognised   by  the Government   of    India   as    possessing    post-graduate qualification in Veterinary and Animal Sciences and teaching posts including the post of Director of IVRI and continue to be recognised  as  guide/teacher  for  post-graduate  degree courses. The  subterfuge was  to expose the petitioners to a fresh   selection    test   with   all   its   consequential uncertainties and  that was  the exact  thing found  by  Dr. Gajaendragadkar Committee.  That is  why it can be said that like  the   true  Bourbons  ’ICAR  has  learnt  nothing  and forgotten nothing.’  The hard  fact is  that the petitioners were holding  the posts  of Professor when the revised scale became effective.  In the  letter  dated  January  20,  1971 sanctioning revised  scale for  the post of Professor, there is not  even a  whisper that  the existing incumbent will be denied the  benefit.   In fact,  it is  well known  that the University Grants  Commission regularly  recommends  revised scales for  every plan  period for  teaching posts  and  the revision takes note of inadequate scales sanctioned till the date of  revision. The  only justification  offered  by  the respondents for  denying the  petitioners the benefit of the revised scale is to be found in the counter-affidavit of Dr. M.S. Swaminathan.  It is  contended that  the newly  created post in  the cadre  of Professor is not the same as the then existing post  and that  there was  marginal revision in the qualifications for not the posts of Professor in the revised scale and  that petitioners  were not  discriminated because they were  given an  opportunity to contest for the posts in the revised  scale. The justification is too flimsy to merit any serious  consideration more  so in view of the fact that it is  difficult to envisage a situation in such institutes, undertaking  advance  research  in  Agriculture  and  Animal Husbandry where  persons holding Doctorate qualification and enjoying the  status of  the  post  of  Professor  would  be governed by  two different  scales even  though the  duties, responsibilities and functions in various sister disciplines are identical.  In such a situation Art. 39(d), trust assist us in  reaching a  fair and just conclusion. Elaborating the underlying intendment  of Art. 39(d), Chinnappa Reddy, J. in Randhir Singh v. Union of 226

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India &  Ors.(1) observed that construing Arts. 14 and 16 in the light  of the  Preamble and Art. 39(d), the Court was of the view  that the  principle ’equal  pay for equal work’ is deducible from those Articles and may be properly applied to the  cases   of  unequal   scales  of   pay  based   on   no classification or  irrational  classification  though  those drawing the  different scales of pay do identical work under the same  employer. The case in hand is a glaring example of discriminatory treatment  accorded to  old  experienced  and highly qualified hands with an evil eye and unequal hand and the guarantee  of equality  in all  its pervasive  character must enable  this Court  to  remove  discrimination  and  to restore fair  play in action. No attempt was made to sustain the scales  of pay for the post of Professor on the doctrine of classification  because the  classification  of  existing incumbents as  be distinct and separate from newly recruited hand with  flimsy change in essential qualification would be wholly irrational and arbitrary. The case of the petitioners for being put in the revised scale of Rs. 1100-1600 from the date on  which newly  created posts  of Professors in sister disciplines in  IVRI and  other institutes  were created and filled in revised scale is unanswerable and must be concede.      When the  matter was  discussed  threadbare  Mr.  Abdul Khader, learned  counsel for  the Union of India stated that all the  petitioners would be put in the revised scales from the time the post of Professor in upgraded scale was filled- in in sister disciplines. Mr. Khader stated that petitioners Nos. 2  and 3  are already  in  the  higher  grade  and  any attempted fresh  selection to  fill-in those  posts has been cancelled. He  further stated  that the first petitioner had to be  unofficially put  in the same scale on account of the failure of the first petitioner to exercise his option to be in the  employment of  the ICAR  and that  as by  now he has exercised his  option he  will enjoy  the same benefit. Thus Mr. Khader  fairly conceded that all the petitioners will be put in the revised scale from the date fresh recruitment was made in sister disciplines in IVRI in the revised scale, and if the  seniority was  disturbed on  account of  the earlier approach, the same would be rectified.      If the petitioners are entitled to the revised scale as hereinabove  indicated,  and  should  be  put  in  the  same pursuant to  the mandamus  we propose to issue in this case, it is  immaterial whether the advertisement which was issued is cancelled or not. If the respondents still want to pursue the advertisement, they may do so without in any 227 manner affecting  the position  of the  petitioners and  the petitioners need  not expose themselves to the vagaries of a fresh selection.  It is  therefore not  necessary for  us to cancel the  advertisement for  the reasons herein indicated. This would dispose of W.P. No. 587 of 1975. Re: R.P, No.4 of 1977 in S.L. P. No. 2339/75 :      Dr. Y.P.  Gupta filed  Writ Petition No. 276 of 1972 in the High Court of Delhi. In this writ petition, he primarily raised two  contentions:(i) that the selection of respondent No. 6  for the  post of Senior Bio-chemist was illegal as he did not  possess  essential  qualifications,  and  (ii)  the removal of  the petitioner  from the membership of the Post- graduate Faculty was unjust and invalid.      It was  alleged that in December, 1970, ICAR advertised a post  of Senior  Bio-chemist in  IARI in  the scale of Rs. 1100-1400. The  essential qualifications were set out in the advertisement as under :      (i)   Doctorate in Biochemistry or Organic Chemistry or           agricultural Chemistry.

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    (ii) 10  years research  experience  in  the  field  of           Nutrition with  particular reference  to  quantity           and quality of protein in food grains as evidenced           by published work.       (iii) Ability  to plan,  organise and  guide  research           involving biochemical  techniques  as  applied  to           protein chemistry and radio-tracer studies."      Amongst others,  petitioners Dr.  Y.P. Gupta,  Dr. T.S. Raman and  respondent No. 6 in the High Court Dr. S.L. Mehta applied for  the post. A Selection Committee was set up with Dr. J.  Ganguly, Professor  of Biochemistry  as Chairman and Dr. P.K.  Kymal and  Dr. N.P.  Datta as  members.  Intending candidates including  petitioners Dr.  Y.P. Gupta,  Dr. T.S. Raman and  respondent No.  6 Dr. S.L. Mehta were interviewed by the  Selection Committee.  The Selection  Committee found that none  of the  candidates interviewed  or considered  in absentia fulfils  all the essential qualifications laid down for the  post and  therefore, the  Committee was  unable  to recommend any  name at  that stage.  The  Committee  further recommended that  the post may be readvertised and essential qualification No. 2 should be amplified by adding the clause ’10 years  research  experience  in  the  field  of  protein Chemistry.’ The Selection Committee further recommended that from amongst the candidates interviewed 228 and considered in absentia those whose names were set out in the report  be called  for fresh interview which may be held after the  post is advertised afresh with expanded essential qualification. This  list includes  the names of petitioners Dr. Y.P.  Gupta and  Dr. T.S. Raman as also respondent No. 6 Dr. S.L. Mehta. A fresh Selection Committee was set up which included  respondent  No.  5  Dr.  M.S.  Naik  against  whom numerous allegations  of mala  fides have been made. The new Selection Committee  interviewed Dr.  Y.P. Gupta  along with others.   Ultimately,   the   second   Selection   Committee recommended Dr.  S.L. Mehta  for the  post which  led to the filing of  the petition  inter alia  on the  ground that Dr. S.L.  Mehta   did  not   satisfy   the   minimum   essential qualification.      Another grievance  in the  petition is  that petitioner Dr. Y.P.  Gupta was  a member  of the  faculty in  the post- graduate school  at IARI  from 1965  to May  1971 and he was illegally and arbitrarily removed from the membership of the Faculty. In  the communication  dated June  15, 1971  by the Assistant  Registrar   to  Dr.   M.S.  Naik,   Head  of  the Biochemistry Department,  Ann. P-1  to the  petition in  the High Court, it is stated that letter of Y.P. Gupta dated May 30, 1970  was  considered  by  the  Academic  Council  which unanimously resolved  that Dr.  Gupta was  not interested in continuing as a member of the Faculty and hence the Council" regret to  utilise his service as a member of the Faculty to the post-graduate  school any  more." Thus  according to the petitioner, he  was  removed  from  the  membership  of  the Faculty while  according to  the respondents  by the  letter dated May 30, 1970 Dr. Gupta submitted his resignation which was accepted by the Academic Council with regret.      The High  Court rejected  the petition primarily on the ground that  no writ petition lies against IARI, a ground no more available  to the  petitioner. On  the merits, the High Court held  that Dr.  Y.P. Gupta  has failed to substantiate the allegations of mala fides made against respondent No. 4- Dr. M.S. Swaminathan and respondent No. 5 Dr. M.S. Naik. The High Court further held that the Selection Committee had the power to  relax the  essential qualifications  and the  very fact that  respondent No.  6 Dr. S.L. Mehta was appointed on

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the recommendation  of the  Selection Committee it must have been  done  by  necessary  implication  after  relaxing  the essential qualification  and therefore,  the appointment  of respondent   No.    6-Dr.   S.L.   Mehta   was   valid   and unquestionable. With  respect to  the second  grievance, the High Court held that Dr. Y.P. Gupta ceased to be a member of the Faculty and that he was not removed from the member- 229 ship and it was not necessary to hear him because it was not a case  of  removal  but  of  cessation  of  membership  and therefore no relief can be granted to Dr. Gupta.      Before we  proceed to examine the contentions raised by Dr. Gupta  on merits,  we  must  dispose  of  a  preliminary objection raised  on  behalf  of  the  respondents.  It  was submitted that not only the writ petition filed by Dr. Gupta was dismissed by the High Court on merits but S.L.P. 2339/75 against the  decision of the High Court was rejected by this Court on  July 21, 1976 after recording the statement of Mr. Lokur, learned  counsel who  appeared for  ICAR as  also the Institute that  the  Academic  Council  would  consider  the question of  taking back  the petitioner  as a member of the Faculty. Thereafter,  Dr. Gupta  filed R.P.  No. 79/76 which was also  rejected by  this Court  on Oct.  27, 1976. At the relevant time  as the  successive review  petitions were not barred, Dr.  Gupta filed R.P. No. 4/77. This review petition was kept  pending and  was finally directed to be heard with the Writ  Petition No. 587/75, by the order of this Court in C.M.P. No.  17350/79 dated  December 19,  1979.  Preliminary objection is  that no case is made out by the petitioner for review of  the decision  of the Court rejecting petition for special leave  filed by  the petitioner.  The writ  petition filed by  Dr. Gupta in the High Court on a reference made by a Division Bench was heard by a Bench of five Judges and the larger Bench  focussed its  attention on  the main  question whether the writ jurisdiction cannot be invoked against ICAR and  its   affiliates  and   it  was   held  that  the  writ jurisdiction cannot  be invoked.  Once the  High Court  held that the  writ jurisdiction  cannot be invoked, it could not proceed to  examine the  contentions raised  by Dr. Gupta on merits. The  moment the  High Court  held  that  it  had  no jurisdiction to  entertain  the  writ  petition,  it  became functus officio and therefore, its decision on the merits of the contention  is of  no consequence  and at any rate could not conclude  the matter against the petitioner. Now that it is held  that the  writ  petition  is  maintainable  on  the finding that  ICAR and  its affiliates  are other  authority within the  meaning of  the expression  in Art.  12  of  the Constitution, justice  demands that  the Court  must examine the contentions  of Dr.  Gupta  on  merits.  We  accordingly overrule the  preliminary  objection  raised  on  behalf  of respondents and proceed to examine the contentions on merits by allowing  the review  petition No.  4 of  1977 and  grant special leave to appeal to the petitioner.      Both the contentions may be separately examined.      The first  contention is that respondent No. 6 Dr. S.L. Mehta 230 who was  selected by the Selection Committee for the post of Senior Bio-chemist  after the bizarre exercise undertaken to find a  suitable person  to fill  in the post on the earlier occasion, did not fulfil one of the essential qualifications for the  post. It was urged that in order to help respondent No. 6  to get  selected essential qualification was doctored to suit  his requirements and respondent No. 5 was nominated on the  second Selection  Committee. When the post was first

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advertised, one  of the  essential  qualifications  was  ’10 years research  experience in  the field  of Nutrition  with particular reference  to quantity  and quality of protein in food grains  as evidenced  by published  work.’ It is not in dispute that  Dr. Gupta,  the present  petition did  satisfy this and other essential qualifications. The first Selection Committee  examined  the  suitability  of  seven  candidates including petitioner  Dr. Gupta Dr. T.S Raman, petitioner in cognate petition  and respondent  No. 6  Dr. S.L. Mehta. The Committee specifically recorded its finding that none of the candidates interviewed  or considered  in absentia including respondent No. 6, selected at a later stage, fulfils all the essential  qualifications   laid  down  for  the  post.  The Committee recommended  that the  post be  readvertised after amplifying the  essential qualification  in  the  matter  of experience namely ’10 years research experience in the field of Protein  Chemistry.  The  post  was  the  pos  of  Senior Biochemist. Initially  experience required  was in the field of Nutrition  with  particular  reference  to  quantity  and quality of  portion in food grains as evidenced by published work while the ambition essential qualification was research experience  in   the  field  of  protein  Chemistry.  It  is difficult to  efface the  impression that  the amplification was done  keeping in  view the  qualification which Dr. S.L. Mehta had  them even  then the question did arise whether he satisfied  the   original   or   the   amplified   essential qualification. The  Committee recommended  that pursuant  to fresh advertisement,  it would  not  be  necessary  for  the petitioners Dr.  Gupta, Dr.  T.S. Raman and respondent No. 6 Dr. S.L.Mehta  to submit a fresh application and they should be interviewed  again with  other  candidates  available  on readvertisement  of   post.  The   Selection  Committee  was reconstituted by  nominating respondent  No. 5,  M.S.  Naik, Head, Division  of Bio-chemistry,  IARI. All  members of the first Selection  Committee were available. No explanation is offered  what   necessitated  expanding   the  Committee  by nominating Respondent  No. 5 on the Selection Committee. And let it be recalled that the relations between petitioner Dr. Gupta and  respondent No.  5 were  by that time considerably strained. It is therefore difficult to escape the conclusion that the  purported amplification of essential qualification appears to  be a  device to  exclude Dr. Gupta who fulfilled the first prescribed essential 231 qualification and  oblige  respondent  No.  6  to  fit  into altered qualification.      Two errors  are pointed  out  in  connection  with  the proceedings of  the second  Selection Committee in which Dr. M.S. Naik  participated, namely,  that the  proceedings were vitiated on  account of  the bias  of Dr. M.S. Naik and that the Committee  failed to  interview Dr.  T.S. Raman  and his case went  by default  not on  account of  his fault  but on account of  inefficiency and  inaction on  the part  of  the administration responsible  for intimating  to Dr. Raman the date of interview.      At the  outset we  must notice  one  development  which renders a  detailed examination of the contentions raised by Dr.  Gupta   unnecessary  though   we  cannot  refrain  from expressing our distress about the recruitment method adopted by the  ICAR and  its  affiliates.  This  exercise,  we  are undertaking  to   satisfy  ourselves   whether   after   the unravelling of  despicable state  of affairs in the internal administration of  ICAR and its affiliates by Gajendragadkar Committee, has any improvement become noticeable ?      Dr. Gupta  challenged the  selection and appointment of

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respondent No.  6 as  Senior Bio-chemist. The post of Senior Bio-chemist has  since been  abolished.  Therefore,  setting aside the  selection of  respondent No.  6 for  the post  of Senior Bio-chemist is only of academic interest. However one aspect which  we cannot  overlook is that by this process of selection seriously  questioned in  this petition,  Dr. S.L. Mehta has  scored a  march over petitioner Dr. Gupta and his co-petitioner Dr.  T.S. Raman  in the matter of higher scale of pay.      The first  question to which we must, therefore address ourselves  is   whether  there   is  any  substance  in  the contention of  Dr. Gupta  that even  applying the  amplified essential qualification, respondent No. 6 Dr. S.L. Mehta was not qualified  for being selected for the post ? The finding recorded by the High Court in this connection is eloquent to establish that  Dr. S.  L. Mehta  did not  fulfil either the original  or   the  amplified  essential  qualification,  of pertaining to  experience. Says  the  High  Court  that  the research experience  respondent No. 6 Dr. S.L. Mehta started from October  1962 when he was preparing research thesis for M.Sc. The  selection took  place in  February 1972  with the result that  the research experience of Dr. Mehta fell short of 10  years. This finding was not only not controverted but is unassailable. And we do not subscribe to the 232 view that  the period  spent in  preparing thesis for M.Sc.- mark not  Ph.D. counts  towards required  experience. It  is well-settled that experience to be of value and utility must be acquired  after the educational qualification is obtained and not  while acquiring  the postgraduate qualification. In the case  of’ Ph.D. Degree awarded on research the situation may be  different. But preparing thesis after graduation for acquiring. post-graduate  degree  would  not  count  towards prescribed  experience   qualification.  Respondent   No.  6 qualified for M.Sc. in 1964 and Ph.D. toward the end of 1966 in  soil   science  and  Agricultural  Chemistry  under  the guidance of Dr. N.B. Das and joined service at IARI in July, 1969. These facts are uncontroverted and therefore, the High Court overlooked  the fact  that respondent  No. 6  Dr. S.L. Mehta had  research experience  extending only over hardly a period of  5 years.  Further the High Court failed to notice that respondent  No. 6  appeared not to carry on research in the line  of Nutrition or protein Chemistry and therefore he did not  fulfil the qualification at all and in our opinion, he even  could not  have been  called for  interview by  the Selection Committee.  Not only  that in  para 10 of the writ petition in  the High  Court, it  was specifically  asserted that respondent No. 6 Dr. Mehta did not satisfy the original or   amplified   essential   qualification   pertaining   to experience because  the post  was under  the project  on the protein quality of millets, sorghum, wheat and other cereals concerned with  studies on  the nutritional  quality of food grains whereas  Dr.  Mehta  has  never  done  any  work  nor published any literature in the line of nutrition nor was he ever  basically  trained  in  this  line.  In  the  counter- affidavit filed on behalf of respondent Nos. 2 and 4 that is Director General  and Secretary  to the Government of India, ICAR and Director General of ICAR, this averment was neither questioned nor  controverted nor  denied. Further  the  High Court upheld the selection and appointment of respondent No. 6 Dr.  Mehta holding  that as  the Selection  Committee  had power to  relax the essential qualification, the appointment of  Dr.   Mehta  was   made  after  relaxing  the  essential qualification. We  find it  difficult to appreciate that the High Court should uphold an appointment of a person, to suit

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whose requirement, the essential qualification was amplified by providing  an irrelevant additional amplification and yet who failed to qualify for the same by resorting to the power of relaxation.  And we  are not  satisfied that  the  second Selection  Committee   had  the  power  to  relax  essential qualification pertaining  to experience. In this connection, it is  advantageous to  refer to  the  counter-affidavit  of respondent No.  4, the  Director General of ICAR, wherein he stated that  first  essential  qualification  pertaining  to educational attainment was relaxable. He is silent as 233 to  the   second  essential   qualification  pertaining   to experience. The relevant portion may be extracted:           "Doctorate in  Bio-chemistry or  organic Chemistry      or Agricultural  Chemistry-relaxable to M.Sc. Degree or      equivalent post-graduate  qualifications in the case of      candidates with  exceptionally distinguished  record of      productive research."      It is  not suggested that there was power of relaxation with regard  to  second  essential  qualification.  However, neither respondent  No. 6  nor respondent  Nos. 2 and 4 ever asserted  that   but  for   power  of   relaxation  claimed, respondent No.  6 could  ever be  said to have satisfied the essential qualification  pertaining to  experience. In  this connection, we may refer to a counter-affidavit on behalf of respondents Nos.  3 and 5 to 7 which included respondent No. 6 the party concerned. In the counter-affidavit, there is an sphinx like  silence with  regard to  the averments  made in para 10  that respondent No. 6 Dr. Mehta did not satisfy the essential  qualification   pertaining  to   experience.  Sub silentio an  admission can  be spelt on behalf of respondent No. 6 that he did not have requisite essential qualification as to  experience. Therefore,  the conclusion is inescapable that  respondent  No.  6  Dr.  Mehta  did  not  satisfy  the essential qualification  pertaining to experience even after the ICAR  and its  affiliates and respondent No. 4 amplified the essential  qualifications. And  we could  not trace  the source of  power if  any to relax essential qualification as to experience. Therefore, on the face of it the selection of respondent No.  6 for  the  post  of  Senior  Biochemist  is utterly unsustainable. More so because there were others who fulfilled all  essential qualification  and one  is left  to speculate the  reasons  which  weighed  with  the  Selection Committee to  reject them and to select a person who did not fulfil the essential qualification for such a post as Senior Biochemist,  claiming   non-existent  power   to  relax  the qualification.      In this context one more submission may be disposed of. It was said that the Committee consisted of experts and they were highly  qualified persons who would be able to evaluate and assess  the relative  merits of  each of  the  candidate before it  and the  Court is  least competent  to do  so and therefore it would be unwise to substitute experts’ decision by Courts’ decision. In this connection, reliance was placed on Dr.  M.C. Gupta & Ors., v. Dr. Arun Kumar Gupta & Ors.(1) in which this Court held as under: 234           "When selection  is made  by the  Commission aided      and advised by  experts having technical experience and      high academic  qualifications in  the specialist field,      probing  teaching/research   experience  in   technical      subjects, the  Courts should  be slow to interfere with      the opinion  expressed  by  experts  unless  there  are      allegations  of  mala  fides  against  them.  It  would      normally be  prudent and  safe for  the courts to leave

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    the decision  of academic  matters to  experts who  are      more familiar  with the  problems they  face  than  the      courts generally  can be. Undoubtedly, even such a body      if it  were to contravene rules and regulations binding      upon  it   the  court   in  excerise  of  extraordinary      jurisdiction to enforce rule of law, may interfere in a      writ petition under Art. 226."      It was urged that once it is conceded that as the power of selection  and appointment  vests in  the ICAR, the Court should not  usurp that  power merely  because it  would have chosen a  different person as better qualified (See State of Bihar v.  Dr. Asis Kumar Mukherjee(1) Undoubtedly, the Court must look  with respect  upon the  performance of  duties by experts in  the respective  fields as  has been  said in Dr. M.C. Gupta’s  case. However,  the task of ushering a society based on  rule of  law is  entrusted to  this Court  and  it cannot   abdicate   its   functions.   Once   it   is   most satisfactorily established  that the Selection Committee did not  have   the  power   to  relax  essential  qualification pertaining to experience, the entire process of selection of the 6th  respondent was  in contravention of the established norms prescribed by advertisement and power of the Selection Committee and  procedure of  fair  and  just  selection  and equality in  the matter  of public employment and to rectify resultant injustice  and establish constitutional value this Court must  interfere. Selection  of  respondent  No.  6  is contrary to  rules and  orders and   violation of prescribed norms of  qualification. He  was inelibleg for the post when selected. His selection and appointment would be required to be quashed and set aside.      The present position however is that the post of Senior Bio-chemist has  been abolished. Undoubtedly, respondent No. 6 by  undeserved benefit  of improper selection has scored a march over  his colleagues  in the  matter of  pay scales to which he would not be entitled. Petitioner Dr. Gupta was put in the scale of Rs. 1100-1600 in 1978 while respondent No. 6 Dr. Mehta  was put  in that  scale in 1980 that is two years after the petitioner. By the illegal selection respondent 235 No. 6 has reached the scale of Rs. 1800-2250 while Dr. Gupta is in the scale of Rs. 1500-2000. Respondent No. 6 Dr. Mehta is enjoying  this utterly undeserved benefit consequent upon his unsustainable selection as Senior Biochemist.      Now that  the post  of Senior  Biochemist is abolished, how do  we  redress  the  wrong.  At  the  hearing  of  this petition, it  was suggested  to the  respondents to put both Dr. Gupta  and  Dr.  Raman  whose  case  will  be  presently examined  in  the  scale  of  Rs  1800-2250  from  the  date respondent No.  6 Dr. Mehta has been elevated to that scale. That is  the only  way for securing justice to Dr. Gupta and he is entitled to it.      The second  grievance of  Dr.  Gupta  is  that  he  was illegally removed  from the  membership of the Post-graduate Faculty by  the Academic Council. Few relevant facts in this connection are  that Dr.  Gupta felt  that he  was  unjustly treated by  his superiors  by not  allocating  students  for Ph.D. to him and by not facilitating post-graduate teaching. There is  a long  drawn-out correspondence  in  this  behalf which we  consider unnecessary  to refer  to save and except the letter  dated May 30, 1970 which has been treated by the Academic Council  as a  letter of  resignation of  Dr. Gupta from  the   membership  of   the  Faculty.  By  this  letter petitioner Dr. Gupta informed the Academic Council that even though he  has been  repeatedly assured  that his  grievance would be  thoroughly examined and full justice would be done

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to him  for the discrimination and victimisation to which he has been subjected in the matter of allotment of students of 1968 and 1969 batches, nothing has been done in this behalf. He further  states that  he has  been  all  along  patiently waiting for  the redressal of his grievance, yet justice has not been done to him. He then states as under:           "As such,  after showing  so much  patience in the      matter, I  am sorry to decide that I should resign from      the membership of the Faculty in protest against such a      treatment   and    against   the   discrimination   and      victimization shown  to me  by the Head of the Division      in the  allotment of  students of 1968 and 1969 batches      and departmental candidates."      This letter  was  placed  before  the  meeting  of  the Academic  Council   convened  on  May  3,  1971  chaired  by respondent  No.   4.  Letter  dated  May  30,  1970  of  the petitioner was  placed on the agenda at Item No. 17. In this connection, the Academic Council resolved as under: 236           "Your letter  was considered by the Council at its      meeting held  on 3rd May, 1971 when the Council came to      the unanimous  conclusion that  you were not interested      in continuing  as Faculty  Member and hence the Council      regrets to utilize your services as a Faculty Member of      the P.G. School any more."      The callous  and heartless  attitude  of  the  Academic Council is shocking. It adds insult to injury. Dr. Gupta has been the  victim of  unfair treatment  because he  raised  a voice of  dissent against certain claims made by the high-up in ICAR  in the  field of  Research. Avoiding going into the details of  it, this  resulted in Dr. Gupta being denied the allocation of  students. He  did not  act in  a  precipitate manner.  He   went  on  writing  letter  after  letter  even including to  respondent No.  4 beseeching  him to look into the matter  and to  render justice  to him.  When everything fell on deaf ears, out of exasperation he wrote letter dated May 30,  1970 in  which he  stated that  the only honourable course left  open to  him was  to resign rather than suffer. The Council  seized upon  this opportunity to get rid of Dr. Gupta. In  this connection,  it is  worthwhile to  point out paragraph  11.1   in  Chapter   XI  of   the  Gajendragadkar Committee’s report  wherein the  major complaints  regarding working conditions in the Divisions were listed as under:      (i)  The Head  of the Division does not give facilities           for work. He favours those who work for him.      (ii) There is  no academic  atmosphere as  there is  no           free discussion  on research  projects and results           obtained.       (iii) Senior Scientists insert their names in research           papers even though they do not do the actual work.      (iv) Purchase  of   chemicals,  glassware   etc.   take           inordinate delay.      (v)  Scientists  are   not  allowed   to  use   certain           equipments which  are available in the Division or           in the  Institute.  For  example,  the  equipments           available in  the Division of Biochemistry of IARI           are not  shared  by  all  the  colleagues  of  the           Division.  The  Nuclear  Research  Laboratory  has           several  equipments   which  scientists  of  other           Divisions normally cannot use."      After listing  these complaints, the Committee gave its considered opinion as under: 237      11.2 We  feel that most of these complaints are genuine           and  they   should  be   remedied.   The   working

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         conditions   for   scientists   should   be   made           attractive  so   that  a   scientists   would   be           encouraged to  engage himself  in research  rather           than engage  himself in  unacademic activities. So           the conditions  in a  Division should be set right           first." (underlining ours)      The    Committee    proceeded    to    make    numerous recommendations to ameliorate the situation. In this context we would  also like  to refer to paragraph 13 at page 152 of the Report which reads as under:           "As more  instances of allegations of unscientific      attitudes, behaviour and practices in IARI, we cite the      following. These  come from  the  submissions  made  by      three scientists of the Bio-chemistry Division of IARI,      Dr. T.S.  Raman challenges  the findings  in the  Ph.D.      thesis of  Dr. L.S. Mehta. a Biochemist in the Nuclear.      Research Laboratory.  Dr. Raman  categorically  asserts      that certain  data  contained  in  Dr.  Mehta’s  thesis      "could not have been obtained by methods he has claimed      to have  been used."  Dr. Y.P. Gupta who apparently has      himself worked  on  the  lysine  content  of  different      varieties of  wheat, states  that  in  the  half-yearly      report for period ending October, 1968, he had reported      the lysine  content of  Sonora-64 to be 3.26%- but that      the Head  of the Division deliberately challenged it to      2.26% so  that the  Sharabati Sonora  might appear in a      more favourable  light. He  seriously disputes the data      on the  protein and  lysine-content of Sharabati Sonora      published by Dr. Swaminathan in the November 1967 issue      of the journal "Food Industries". Dr. K.G. Sikka states      that  four  varieties  of  Arhar  (cajanus)  have  been      recently released  which he finds contain certain toxic      substance causing  blindness  among  rate.  Within  the      short time  available to  us, it  has not been possible      for us  to examine  these allegations.  We do  not also      think that  it would  be a  fruitful course  for us  to      pursue. It  is obvious  that  these  are  very  serious      allegations. Whether  they are  substantiated a careful      examination, the  fact  remains  that  there  are  many      junior scientists in IARI who, rightly or wrongly, feel      that they  are not free to publish a scientific finding      because it  does not suit somebody higher up or that in      fact unscientific  data are  being  passed  on  to  the      higher authorities in return of favours and promotions 238      The existence  of  this  feeling  is  most  regrettable      because it  creates  the  conditions  for  breeding  of      unscientific behaviour  and practices  if they  do  not      already exist.  Mere refutation of the allegations will      not therefore do."      Dr. Gupta’s  complaint was  then noted  and that is the complaint which awaits redressal. It clearly transpires that Dr. Gupta  was hounded out of the Faculty membership and now the respondents  try  to  hide  this  inconvenient  fact  by treating the  cry of  agony in the letter dated May 30, 1970 as letter  of resignation.  Apart from being harsh, it is an unethical attitude on the part of the ICAR. However, at this stage, we  would record  a  statement  made  by  Mr.  Lokur, learned counsel appearing for ICAR and its affiliates before this Court  on July  21, 1976  at the  hearing of S.L.P. No. 2339/75 preferred  by petitioner  Dr. Gupta  which reads  as under:           "Mr. Lokur  states  that  the  respondent  council      would  consider   the  question   of  taking  back  the      petitioner as a member of the Faculty."

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    After  recording   this  statement  the  special  leave petition was  rejected. It  was hoped  that the  respondents would act  to honour the statement of their learned counsel. Now that  the matter  is being  disposed of  we  direct  the council to  carry out  its statement  made before this Court within three months from the date from today.      Re: R.P.  No. 80/76  in S.L.P.  702/76 Dr.  T.S.  Raman filed the  writ petition in the Delhi High Court challenging the selection  and appointment of respondent No. 6 as Senior Biochemist on  all the  grounds which were urged by Dr. Y.P. Gupta in  his writ  petition. There  is also  an  additional point in  his favour in that even though the first Selection Committee constituted  to select  a  Senior  Biochemist  had directed  that   the  second   Selection  Committee   should interview Dr.  T.S. Raman  along with  other candidates,  no intimation was  sent to  him about  the date and time of the interview and  he did  not have the benefit of the interview by  the   second  Selection   Committee  which   recommended respondent  No.   6  Dr.   Mehta  for  the  post  of  Senior Biochemist. Dr.  T.S. Raman  questioned the  corrections and validity of  the selection of Dr. S.L. Mehta, respondent No. 6 in  Special Leave  Petition 702/76  which  was  heard  and disposed of  along with  the writ  petition of Dr. Gupta and met with  the same  fate. Dr.  Raman  preferred  S.L.P.  No. 702/76 which was dismissed by this Court on August 30. 1976. Thereafter, he filed Review Petition No. 80/76 239 which was  directed to  be heard in this group of petitions. The reasons  which found  favour with  us for  reviewing the decision of  this Court  dismissing the  S.L.P. No.  2339/75 preferred by  Dr. Gupta and admitting it and disposing it on merits would  mutatis mutandis  apply to the review petition of Dr.  T.S. Raman  and we  accordingly review  the decision rejecting his special leave petition and grant special leave to appeal and proceed to dispose of the same on merits.      Ordinarily Dr.  Raman should  get the same relief which Dr. Gupta  is held  entitled  to,  but  certain  facts  were brought to  our notice  which necessitate a consideration of Dr. Raman’s  case slightly differently. Before we proceed to examine Dr.  Raman’s case,  it may  be noted  that the  High Court found  fault with  Dr.  Raman  in  not  informing  the concerned authority  about the  change in  his address  and. therefore, if  Dr. Raman  did not receive the intimation for interview, he  should thank  himself. This approach does not commend to  us. Dr. Raman was still in the employment of the Institute at  the time  when the  Second Selection Committee decided to  interview candidates and in view of the findings of the  first Selection Committee, Dr. Raman was entitled as a matter of right to be called for interview. The High Court observed that  Dr. Raman  neither applied  for the  post nor appeared for  the  interview  before  the  second  Selection Committee. This  is begging the issue because the High Court wholly overlooked  the proceedings  of the  first  Selection Committee in  which it  was decided  that without  any fresh application. from  Dr. Raman, he would be considered to be a candidate before the second Selection Committee and would be called for  interview. There  is a further confession in the observation of  the High Court when it states that Dr. Gupta and Dr.  Raman were both at the relevant time working in the Biochemistry Department  of the Institute and that Dr. Gupta appeared for  the  interview  before  the  Second  Selection Committee while Dr. Raman failed to do so and he cannot make a grievance  about his  own lapse.  If Dr.  Raman was at the relevant time attached to the Institute and was working with the Institute,  we see no justification for the ministerial,

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side of  the Institute  not informing Dr Raman to appear for interview. The  lapse was  on  the  part  of  the  Selection Committee and the same cannot be wished away. The High Court was clear  in error  in observing  that either Dr. Raman was not hopeful  of getting the job or he had some other reasons for not  applying for  the same  and therefore his grievance cannot be  entertained. This  is clearly contrary to record. He had  applied earlier  and was  entitled to  be called for interview as  noted in  the proceedings.  It was  obligatory upon the second Selection Committee 240 to inform Dr. Raman to appear for the interview and adequate steps should  have been taken to give the intimation because he was  attached to  the Institute and was in active service of the Institute and intimation to him would not require any herculean effort on the part of the Committee. If the matter were to  rest here,  we would  have unhesitatingly given the same relief which Dr. Gupta is held entitled to, but certain additional facts  were put  on record  which  necessitate  a different approach.      It may be recalled that since the revision of the scale attached to  the post of Professor to Rs. 1100-1600, further promotion was  to the  scale of  Rs. 1500-2000  and the next promotional stage  was Rs. 1800-2250. It now transpires that Dr. Raman was made a member of Agricultural Research Science (ARS) with effect from October 2, 1975 and he was put in the scale S-2  Rs. 1100-1600  from the same date. Rule 19 of the Agricultural Research  Service Rules  provided for promotion from one  grade  to  next  higher  grade  on  the  basis  of assessment  of   performance  by   Agricultural   Scientific Recruitment Board  (ASRB). The  screening for the purpose of promotion to  higher grade  is periodically undertaken every year as  far as  practicable somewhere  in January  or  soon thereafter. Such  a screening  was undertaken on October 26, 1977 by  the Assessment  Committee appointed by the Chairman of ASRB.  The period under assessment was upto and inclusive of December  31, 1975.  Unfortunately,  Dr.  Raman  was  not recommended by the Committee for promotion to S-3 grade i.e. Rs. 1500-2000, but instead of promotion to the higher grade, the Committee  recommended that  two advance  increments  be granted to  Dr. Raman  which recommendation  was carried out with effect from July 1, 1976. Against the assessment by the Assessment Committee, Dr. Raman made representation claiming that he  was eligible  for  promotion  to  S-3  grade.  This representation  was   rejected  by   the  Director   General concurring  with  the  assessment  made  by  the  Assessment Committee which  did not find Dr. Raman fit for promotion to S-3  grade.   In  1978  Dr.  Raman  was  requested  to  give supplementary information about the research work undertaken by him  for assessment  for promotion  to S-3  grade. In the meeting of  the Assessment  Committee held  on May 28, 1980, the information  supplied  by  Dr.  Raman  was  held  to  be insufficient and this can be culled out from the observation of the  Committee that  Dr. Raman ‘could not be assessed for want of  material and  CCRs for  all the years’. The case of Dr. Raman  for promotion  to S-3  grade again came up before the Assessment Committee which met on April 22, 1982 and the Committee noted its decision conveyed by the words 241 ‘no change’. Now these assessments are not questioned in the writ petition  filed  by  Dr.  Raman  and  these  are  later developments and  therefore, it  would be  difficult to give Dr. Raman  any benefit  at this  stage wholly  ignoring  the later developments      The learned  counsel  for  the  ICAR  after  succinctly

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pointing out  the facts  hereinbefore  mentioned,  submitted that it  is not  possible to  accord same  treatment to  Dr. Raman  on   par  with   Dr.  Gupta   wholly  ignoring  later developments. He  however frankly  and fairly stated that if the  Court  directs,  the  Institute  has  no  objection  to appointing afresh  Committee for  making a  fresh assessment for ascertaining  the suitability of Dr. Raman for promotion to S-3  grade on  the basis  of the  material regarding work done and  achievements made by him for the period commencing from December  31, 1976 upto the period he has been assessed or until  now. It  was further submitted that if the special Assessment Committee which may be set up to examine the case of Dr. Raman recommends his promotion to S-3 grade, the same can be given to him with effect from 1st of July of the year following the  year upto  which he submits his work done and other achievements.  Dr. Raman  is in the grade of Rs. 1100- 1600 since  1975. A  period of  8 years has rolled by. He is undoubtedly a  highly qualified  person. It  is equally true that he  has been  assessed thrice  and  found  wanting  for promotion to  the higher  grade. However,  we appreciate the fair attitude  adopted by the learned counsel in this behalf and accordingly  direct that  the Institute  shall set  up a special Assessment  Committee to  assess the  suitability of Dr. Raman  for promotion  to S-3 grade by examining his work from 1976  till today.  This may  be done within a period of three months from today.      Except for  what we  have recommended  in the foregoing paragraph, it  is not  possible to  give Dr. Raman any other relief which  Dr. Raman would have been held entitled on the ground  that  it  was  an  error  of  the  second  Selection Committee not  to  have  interviewed  him  or  not  to  have considered his  case in  absentia as  directed by  the first selection Committee. Though the lapse was on the part of the respondents, the resultant situation has become irremediable and  irreversible.  Therefore,  with  the  observations  and directions made  in  the  foregoing  paragraph,  the  appeal arising from  the special  leave petition of Dr. Raman fails and is dismissed.      Re :  C.A. No.  1043/81 : Appellant Om Prakash Khauduri after  obtaining  post-graduate  degree  in  the  discipline ‘Operational Research’  in 1973-74 joined the post of Senior Computer in Indian 242 Agricultural Statistics  Institute, an  affiliate of ICAR on December 4,  1975. The  Agricultural Scientists  Recruitment Board (‘ASRB’  for short)  has been  constituted by the ICAR with the approval of the Government of India as a recruiting agency  for  the  various  posts  in  Agricultural  Research Service (ARS’  for  short).  ASRB  issued  an  advertisement intimating that it would hold competitive public examination in 1978  to recruit scientists to be appointed under various disciplines of  ‘ARS’. For  the information of the intending candidates, ASRB made available the rules framed by the ICAR on August  19, 1977 (‘1977 Rules’ for short) setting out the terms  and  conditions  for  admission  to  the  competitive examination and  the criteria  for selection  of  successful candidates etc.  The competitive  examination was to consist of written  test having  600 marks  followed by  a viva voce test carrying  100 marks. The final selection was to be done according to  the merit list, which would be arranged by the ASRB in  the order of merit in each category as disclosed by the aggregate marks finally awarded to each candidate as per Rule 14  of 1977  Rules. In  response to  the advertisement, petitioner applied  on Oct.  26, 1977  for being admitted to the  examination   and  his  application  was  accepted  and

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petitioner appeared  in the  written test.  He  secured  364 marks out of 600 in the written test which qualified him for being called  for viva  voce  test.  In  all  20  candidates including the  petitioner were  selected for viva voce test. After the  viva voce test, the ASRB declared the names of 13 candidates as  successful and  finally selected them for ARS in the  discipline ‘Agricultural Statistics’. The petitioner was not  among the successful candidates. In fact, nearly 21 vacancies  were   left  unfilled  by  the  ASRB.  Petitioner contends  that   ASRB  contravened   Rules  13   and  14  by prescribing minimum  marks for  qualifying at viva voce test at 40 out of 100 and those who did not secure 40 marks, even if on  aggregate  of  the  marks  were  eligible  for  being included in  the merit  list, such  candidates were  wrongly excluded from  the merit  list. Petitioner  further contends that the  merit list  prepared in  contravention of Rules 13 and 14 and the resultant selection based on such illegal and invalid merit list is liable to be quashed and a mandamus be issued directing  the respondents  to prepare  a fresh merit list in accordance with Rules 13 and 14. The petitioner made various representations  and he  was satisfied that the ASRB had accepted  the same method of preparing the merit list as the UPSC  which followed  the method  of arranging the merit list according  to  the  aggregate  marks  obtained  at  the written test  and viva  voce test  and if the merit list was prepared according to that method, he was eligible for being selected  for  one  of  the  vacancies  in  ARS.  Petitioner continued his search for justice and ultimately 243 he filed  a Writ  Petition No.  553/80 in  the High Court of Delhi for  the above mentioned reliefs. A Divisions Bench of the High  Court held that the law as it then stood was clear that a  Society registered  under the Societies Registration Act was not other authority within meaning of the expression under  Art.   12  and  that  as  ICAR  is  a  society,  writ jurisdiction cannot  be invoked against it and on this short ground writ petition filed by the petitioner was rejected in limine. Hence this appeal by special leave.      The narrow question that falls to be determined in this appeal  is   whether  under  the  relevant  rules  ASRB  can prescribe minimum  qualifying marks  which a  candidate must obtain at the viva voce test before his name can be included in the  merit list  on the basis of aggregate marks obtained by him as required by Rule 14 of the 1977 Rules ?      ASRB has  been set  up as  a separate  and  independent agency for  recruiting personnel  for IASRI, an affiliate of ICAR. A  competitive examination was held in 1978 to recruit scientists to  be appointed under various disciplines of ARS including the  discipline  ‘Agriculture  Scientists’.  There were 34  vacancies in  this discipline.  Selection was to be made by  competitive  examination  comprising  written  test carrying 600  marks in  the aggregate  and  viva  voce  test carrying 100 marks. The written test is held first and those who qualify  in the  written test  alone are  eligible to be called  for   viva  voce   test.  It   is  alleged  and  not controverted that ASRB prescribed that anyone to be eligible for being  admitted in  the  merit  list  on  the  basis  of aggregate   marks    should   also   have   the   additional qualification of atleast obtaining 40 marks in the viva voce test.  It   is  seriously  contended  that  this  additional qualification does  not have  the authority of law, and that it was arbitrarily devised without any rationale behind it.      The relevant  rules are  Rules 13  and 14  of the  1977 Rules, which may be extracted :      "13. Candidates who  obtain such  minimum marks  in the

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         the written  examination as  may be  fixed by  the           Board in  their discretion  shall be  summoned  by           them for viva voce.      14.  After the  examination,  the  candidates  will  be           arranged by  the Board  in the  order of  merit in           each category 244           (professional subject-wise)  as disclosed  by  the           aggregate marks  finally awarded to such candidate           and such  candidates as  are found by the Board to           be  qualified   by  the   examination   shall   be           recommended for  appointment upto  the  number  of           unreserved vacancies  decided to  be filled on the           result of the examination."      Mr. Ramachandran,  learned counsel  for the  petitioner contended that  Rule  13  does  not  envisage  obtaining  of minimum  marks   at  the  viva  voce  test  even  though  it contemplates obtaining  minimum marks at the written test so as to  be eligible  for being  called for viva voce test. It was further urged that Rule 14 specified the manner in which merit list  is to  be arranged.  Rule 14 provides that after both written  and viva  voce tests  are held, the candidates will be  arranged by the Board in the order of merit in each category (Professional  subjectwise)  as  disclosed  by  the aggregate marks  finally awarded  to each candidate and such candidates as  are found by the Board to be qualified by the examination shall  be recommended  for appointment  upto the number of  unreserved vacancies  decided to be filled on the result of the examination. On a combined reading of Rules 13 and 14,  two things  emerge. It  is open  to  the  Board  to prescribe minimum  marks which the candidates must obtain at the written  test before  becoming eligible  for  viva  voce test. After  the candidate  obtains minimum marks or more at the written  test and  he becomes  eligible for being called for viva  voce test, he has to appear at the viva voce test. Neither Rule  13 nor  Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candidate  at the  viva voce  test. On the contrary, the language of  Rule 14 clearly negatives any such power in the ASRB when  it provides  that after  the written  test if the candidate has  obtained minimum  marks, he  is eligible  for being called  for viva  voce test  and the  final merit list would be  drawn up  according  to  the  aggregate  of  marks obtained by  the candidate  in written  test plus  viva voce examination.  The   additional  qualification   which   ASRB prescribed to  itself namely, that the candidate must have a further qualification of obtaining minimum marks in the viva voce test does not find place in Rules 13 and 14, it amounts virtually to  a modification  of  the  Rules.  By  necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit  and cannot be read by necessary implication for the obvious  reason that  such deviation  from the  rules is likely  to  cause  irreparable  and  irreversible  harm.  It however does  not appear  in the facts of the case before us that because of an allocation of 100 marks for 245 viva voce  test, the result has been unduly affected. We say so for  want of  adequate material  on the  record. In  this background we  are not  inclined to  hold that 100 marks for viva voce  test  was  unduly  high  compared  to  600  marks allocated for  the written test. But the ASRB in prescribing minimum 40  marks for  being qualified  for viva  voce  test contravened Rule  14 inasmuch  as there was no such power in the ASRB  to prescribe  this additional  qualification,  and

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this   prescription    of   an    impermissible   additional qualification has  a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained  by the  candidate at  written test plus viva voce test.  Once an  additional qualification  of  obtaining minimum marks  at the  viva  voce  test  is  adhered  to,  a candidate who  may figure  high-up in  the  merit  list  was likely to be rejected on the ground that he has not obtained minimum qualifying marks at viva voce test. To illustrate, a candidate who has obtained 400 marks at the written test and obtained 38  marks, at  the viva voce test, if considered on the aggregate  of marks  being 438 was likely to come within the zone  of selection,  but would be eliminated by the ASRB on the  ground that  he has not obtained qualifying marks at viva voce test. This was impermissible and contrary to Rules and the  merit list  prepared in  contravention of the Rules cannot be sustained.      It may  at this  stage be  pointed out  that the  Union Public Service  Commission has  framed its rules relating to competitive examination  held  by  it  in  1978  to  recruit personnel  to   Indian  Economic   Service  and  the  Indian Statistical Service.  Rule 12  and 13  are relevant for this purpose. Briefly,  it may  be stated that rule 12 authorises the Commission to prescribe minimum qualifying marks for the written examination  to be  fixed by  the Commission  at its discretion. It  further appears  that those  who obtain  the minimum qualifying  marks will  be eligible for being called for  viva  voce  test.  Rule  13  provides  that  after  the examination i.e.  both the  written test  and the  viva voce test, the  candidates will  be arranged by the Commission in the order  of merit  as disclosed  by  the  aggregate  marks finally awarded  to each candidate and in that order so many candidates as are found by the Commission to be qualified by the examination  shall be  recommended for  appointment upto the number  of unreserved  vacancies decided to be filled on the result  of the  examination. There  is a proviso to this rule  which   is  immaterial.   It  appears  that  when  the petitioner drew  attention of  the ICAR  that in prescribing the additional qualification of minimum marks to be obtained by the  candidates at  the viva  voce test and not preparing the merit  list according  to  the  aggregate  of  marks  by excluding those candidates who 246 had not  obtained minimum  qualifying marks at the viva voce test, it  contravened Rules  13 and 14 and more particularly Rule 14,  the ICAR  referred the matter to UPSC and enquired about the procedure followed by it. There is an admission in the counter-affidavit  of Mrs.  Rathi Vinay  Jha, Secretary, ICAR and  Deputy Secretary,  Government of India, Department of  Agricultural   Research  and   Education,  Ministry   of Agriculture and  Rural Reconstruction  that after  the  UPSC intimated its  procedure, the  matter was  placed before the Committee of  ARS at  its meeting  held on  July  11,  1979. Subsequently, the  President, ICAR  approved  the  procedure followed by  the UPSC  and recommended  by the  Committee of ARS,  and   the  revised   procedure  was  adopted  for  the examination held  in January,  1981. The  revised  procedure eliminates obtaining  of minimum  qualifying marks  at  viva voce test.  May be  that the  ICAR has  corrected itself but what about  the damage  done to  the  petitioner  and  those similarly situated.      It is  not possible  at this  late stage  to reject the entire selection  on the  ground that  the ASRB  committed a serious legal  error in prescribing minimum qualifying marks at the  viva voce  test and  drawing up  merit list  on this

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impermissible  method.  It  would  be  equally  improper  to disturb the  selection of  those who  had been  selected and appointed way  back in  1978. Even  though it is true that a serious legal  error has  been committed  in drawing  up the merit list, at this late stage, it would be unwise to reject the entire  selection,  disturbing  those  who  are  already selected and  may have  put in  service of  not less  than 5 years. But  it is  crystal clear that 21 vacancies were kept unfilled. It  is not  made clear  whether the petitioner has been selected  at any  later selection. If he is selected at the later selection, nothing further is required to be done. But if  he is not selected, the ASRB may draw the merit list in respect  of remaining  21 unfilled vacancies from amongst those who  were called  for viva  voce test and who were not selected because  some  of  them  like  petitioner  did  not obtained minimum  qualifying marks  at viva  voce test.  The merit list  may be  drawn in  respect of  those  who  though called for  viva voce  did not  qualify for being put in the merit, ignoring  the concept  of minimum  qualifying marks a merit list  in respect  of them  be drawn up on the basis of aggregate  marks.   If  there  is  a  vacancy,  and  if  the petitioner  comes  within  the  zone  of  selection  on  the aggregate of  marks obtained  by  him,  his  case  shall  be considered   for    appointment   prospectively,   and   not retrospectively. This  is  the  only  relief  which  we  are inclined to grant to the petitioner. 247      That is the end of the journey. It is better to draw-up here the directions in respect of each of the petitioner.      In Writ  Petition No.  587/75, the  ICAR is directed on their concession  and by a mandamus of this Court to put the three petitioners  in the  revised scale  of  Rs.  1100-1600 sanctioned for  the post of Professor effective from the day when others  selected as  Professors in  sister  disciplines were awarded the revised scale of Rs. 1100-1600.      In Special  Leave Petition  No. 2339/75,  the  ICAR  is directed by  a mandamus  of this  Court to award to Dr. Y.P. Gupta the  scale of Rs. 1800-2250 from the date the same was given to  respondent No.  6  Dr.  S.L.  Mehta.  The  arrears payable pursuant  to the  direction shall  be paid  within 3 months from today.      Further the ICAR is directed to carry out the statement made by  its learned  counsel Mr.  Lokur of  taking back Dr. Y.P. Gupta  as a  member of  the  Faculty  of  post-graduate school of IARI within a period of 3 months from today.      In S.L.P.  No. 702/76, it is directed on the concession of  the   learned  counsel  for  the  ICAR  that  a  special Assessment Committee  may be  set up  to examine the case of Dr. T.S. Raman for promotion to S-3 grade within a period of 3 months:  Dr. T.S.  Raman is  not entitled  to any  further relief in his special leave petition.      In C.A.  1043/81, the  ICAR and  ASRB are  directed  to prepare the  merit list  in respect  of those candidates who were called for viva voce test, but were not included in the merit list  on the  aggregate of  marks obtained  by them as directed  herein   and  if   there  is  a  vacancy  and  the appellant/petitioner comes  within the  zone of selection he shall be  appointed to  one such  vacancy.  The  appointment would be prospective and would be effective from the date of the appointment but this is subject to the condition that if the appellant/petitioner  is already  selected  at  a  later selection, nothing more is required to be done.      We order  accordingly. The  respondent  shall  pay  the costs of the petitioners in each petition. N.V.K.                        Appeals & Petitions allowed.

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