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PETITIONER: DR. L.M. NATH

       Vs.

RESPONDENT: DR. S.K. KACKER & ORS.

DATE OF JUDGMENT08/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. PARIPOORNAN, K.S.(J)

CITATION:  1996 AIR  847            1996 SCC  (1) 229  JT 1995 (8)   199        1995 SCALE  (6)346

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We are  conscious of  the fact  that impugned  order is only an  ad interim  one passed by the Division Bench of the Delhi High  Court on  October 19, 1995. But, keeping in view the importance  of administration  of all India Institute of Medical  Sciences   which  is   a  premier  and  prestigious institution in  the  country,  its  smooth  functioning  and efficient management  would be  the primary and sole concern of every  one including  Judiciary when  its intervention is deemed  expedient.   The  Director   remains  in  day-to-day management of  the institute  and must  and ought  to  be  a dynamic person,  efficient and of sterling character capable to  carry  with  him  all  concerned  in  not  only  proper, efficient and  prompt manner to the needy patients thronging in  thousands  daily  for  treatment  but  also  capable  to mobilise needed  resources    to fruition, the objectives of the institute.  Bearing this pragmatic consideration and not pedantic nor  legalistic orientation,  this  court  in  L.P. Aggarwals vs.  Union of  India [AIR  1992 SC 1872] held that even outsiders  are eligible  to be considered for selection as  Director,  We  think  that  instead  of  prolonging  the uncertainty in its administration, instead of relegating the authorities to  go to  the High  Court to  have  the  matter decided, it  would be better to dispose of the interlocutory application C.  M. No.  6473/95 in  civil writ  petition No. 3865/95 dated October 19, 1995 at this stage itself. We have heard counsel on both the sides in extenso.      It  is   not  in  dispute  that  Prof.S.K.  Kacker  was appointed by selection as Director on October 15, 1990 for a term of  5 years  and on  the even  date he  had assumed the charge. His  term as  Director stood  expired on October 14, 1995. It  is also  not in  dispute that on June 5, 1995. the Institute Body  which is  the apex  body of  the Institution decided  to   select  a   Director  as   per  the  procedure

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contemplated  under   its  Rules   and  appointed  a  Select Committee to  set in motion the process for selection of the Director.  At   that  point   of  time,   the  request   for reappointment by  Dr. Kacker also came up for consideration. It was  decided that no extension as Director could be made. Instead, his  case may  also be considered along with others for fresh appointment as Director. Since its confirmation is now stayed  by  the  High  Court  in  another  pending  writ petition, except  with leave  of the  Court, they did not go through the  process of  selecting the  Director before  the term of Dr. Kacker expired on October 14, 1995.      The President  of the  Institution exercising the power under Rule  7 (4)  of the  All India  Institute of  Medical. Sciences Rules,  1958 (for  short ‘Rules’) holding that "the appellant Dr.  L.M. Nath,  the Dean  of the Institute, Head, Centre for  Community Medicine  who had  always been looking after the  functions of  the Director in absence, and as the senior most Professor of the Institute Kept in mind the best interest of  the AIIMS,  passed  the  following  order;.  In exercise of  the powers  conferred on me by Rule 7(4) of the All India  Institute of  Medical  Sciences  Rules,  1958,  I hereby appoint Prof. Lalit Mohan, Head, Centre for Community Medicine and  Dean, AIIMS to look after the functions of the Director of  AIIMS with  effect from  the forenoon  of  15th October, 1995  for a period not exceeding six months or till such time a new Director is appointed."      It would  appear, as asserted by the appellant, that he assumed the  charge on  October 15,  1995 and  continued  to function till  October 19,  1995. Prof.  Kacker filed a writ petition in  the High  Court being  Civil Writ  Petition No. 3865 on  October 16,  1995. claiming certain reliefs and the interim relief  he  sought  was  for  a  direction  to  stay operation  of   the  letter  dated  October  15,  1995,  the resolution dated  June 5,  1995 and  "to appoint  him as the officiating Director  in terms  of Rule 7(4)," which came up before the  Bench on October 19, 1995. The Division Bench of the  High   Court  in  the  impugned  order  restrained  the respondents therein  from giving  effect to  or implementing the order dated October 15, 1995 by which the appellant (the Respondent No.  4 in  the High Court) has been asked to look after functions  of  the  Director  and  Dr.  Kacker  "shall continue to  hold the  office of  the  Director,  AIIMS  and function as such till further orders from the Court ......"      We heard elaborate arguments on merits addressed by the learned counsel  for the appellant as well as the contesting Ist respondent,  only to  satisfy  our  conscience,  whether Division Bench  of the  High Court  was  justified  at  that stage, to  interfere with  the  order.  Giving  our  anxious consideration to  the contentions,  we think  that the  High Court was  justified at  that stage,  to interfere  with the order. Giving  our anxious consideration to the contentions, we think that the High Court was not at all justified in its interference. It  is seen  that the  order of appointment of Dr. Kacker  as the Director, came to an end in the afternoon of October  14, 1995  since admittedly  it is a tenure post. Unless there  is an order expressly extending his tenure, he has no  right  to  continue  thereafter.  The  court  cannot exercise the power of the authorities under Rule 7(4) except when it  deems legal to consider them to be so exercised for the reasons  given in  the order. After October 14, 1995 the 1st respondent  cannot continue  as Director  unless  he  is appointed under  Rule 7  (4) which empowers the President or Institute Body  to make  an interim arrangement till regular Director is appointed or for six months.      The main  part of the Rule gives power to the President

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to appoint  the senior  most Professor. The proviso empowers the Institute  Body to appoint any Professor irrespective of seniority. The  only condition  is that the Institute should record reasons  to justify  the exercise of the power vested in it.  Admittedly, the  Institute Body  had not  passed any orders under  the proviso. It had already rejected the claim of Dr.  Kacker for reappointment. Since the President passed the order under main part of Rule 7(4) the question would be whether the  President would  be justified to pass the order under these circumstances. It is seen that in 1974 seniority list, produced  by Dr. Kacker, he is the senior most and the appellant is  the second senior most. In our considered view that since  Dr. Kacker  has already  held the  office of the Director and  the Institute  Body had already decided not to reappoint him  except through  the process  of selection, by necessary implication,  he would  not be  considered  to  be appointed  even   as  interim   Director   pending   regular appointment under  Rule 7  (3) of the Rules. The consequence would be  that the  appellant being  the next senior most in order, it  would appear, that the President was justified in appointing him  as the  interim Director pending appointment of the  Director or for six months whichever may be earlier. It is reasonable to hold that any other interpretation would be a negation of the conscious action of the Institute Body.      In view  of the  stalemate created  in the selection of Director, since we are informed that the writ petition filed by common  cause has  already been  heard and  judgment  was reserved, we think that we have to make a special request to the Division  Bench of  the High  Court, which  heard it, to consider whether  it would  not be  desirable to deliver the judgment as  expeditiously as possible so that the stalemate in the  appointment of Director may be put an end to and the appropriate authority  may  take  a  decision  to  make  the regular selection  and appointment  of the Director. We have ventured to  give  this  suggestion  keeping  the  paramount interest  of   the  smooth  administration  of  the  premier institution of  the nation  and not of any inter se claim of any person entitled to these claims.      With regard to any other relief to which the respondent No.1 may  be entitled  to seek for consideration, it will be open to  the High  Court to  consider,  if  he  is  entitled according to  Rules and  to  pass  such  orders  as  may  be warranted according to law.      The appeal  is accordingly  allowed  and  the  impugned order of  the High  Court is  set aside. But in the peculiar facts and circumstances of the case, no costs.