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PETITIONER: STATE OF BIHAR & ANR.

       Vs.

RESPONDENT: DR. ASIS KUMAR MUKHERJEE & ORS.

DATE OF JUDGMENT03/12/1974

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. GOSWAMI, P.K. GUPTA, A.C.

CITATION:  1975 AIR  192            1975 SCR  (2) 894  1975 SCC  (3) 602  CITATOR INFO :  RF         1980 SC1896  (103)  R          1984 SC 541  (31)

ACT: Indian Medical Council Act, 1956-s. 2 Teaching institution, teaching, experience-Meaning of duty of State Government  to consult  the Council in cases of doubt-When the  High  Court could  call for Cabinet papers or other sensitive  materials for inspection-Whether State should make a reasoned order of appointment.

HEADNOTE: Respondent No. 1, along with two others, was a candidate for one  of  the Iwo posts of lecturers in  the  government  run medical  colleges  in  the  State.   One  of  the  important qualifications   prescribed  for  the  post  was   "teaching experience  in  a  teaching  institution."  The   respondent satisfied  the other academic qualifications prescribed  for the  post.  The State Government rejected the contention  of respondent No. 1 that he had acquired the required  teaching experience  when  he  worked ill  United  Kingdom  and  was. therefore. entitled to be appointed as a lecturer.  The High Court,  in  a  writ  petition  under  article  226  of   the Constitution  by respondent No. 1, quashed the  decision  of the Government and directed it to reconsider his case.   The Government  examined  the  case  do  novo  and  again  found respondent  No. 1 to be ineligible for the post.   When  the respondent  went  to  the High Court  in  a  second  attempt impugning  the  decisions of the Government the  High  Court examined the Cabinet papers, and other reports and  nothings of  the  officers, both technical  and  administrative,  and quashed  the decision of the Government.  The appellant  and the respondents appealed to this Court. It  was contended on behalf of the State that the  "teaching experience"  in a "teaching institution" visualised  by  the regulations  must be in India and not in a foreign  country; that  even  assuming that the British  Medical  Institutions could  come within the purview of the regulations. the  post of Registrar held by respondent No. 1 had not been shown  to carry  ’teaching  experience’: that the  hospitals  and  the Universities  where respondent No. 1 worked were not  proved

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to  be  teaching  institutions  and  that  the  testimonials produced by the respondent were not reliable. Dismissing the appeals of the State HELD  : (1)(a) The first respondent’s case for the post  has not  been  considered from the legal angle.  The  orders  of appointment  of the appellant in C.A. 1431 of 1974 were  bad in law.  The appellants in C.A. 1430 of 1974 are directed to consider  de  novo  the appointments to  the  two  posts  of lecturers.   Government  will be free to  consult  technical authorities  of  its own before reaching  a  decision.   The first  respondent  is  at liberty  to  adduce  materials  to satisfy  the  State  Government on  his  qualifications  (or otherwise). [905G-A] (b)  While   the  expressions  ’medical   institution,   and approved  institutions’  are defined in s-2 of  the  Medical Council   Act  1956,  neither  ’teaching   experience’   nor ’teaching institution’ has been defined in the Act rules  or regulations.   It would be natural to expect  any  authority like the State Government to called upon to construe   these words  urged  in  the setting of a medical  satute.   If  in doubt, to consult the Irish   professional         authority enjoying statutory status. namely, the Medical Council of India. [900E-F] In  the  instant case the State Government is said  to  have taken  a policy decision not to consult Medical  Council  of India because on an earlier occasion the Medical Council had given a view once but modified it a little late,.   Although there  is nothing on the record to prove the allegations  of the  State, if it were true that national  technical  bodies were shaky on crucial occasion, they lend themselves to  the suspicion   that  pressure  pays.   While   the   appointing authority is the State Government and the responsibility for final choice vests 895 in it, it is reasonable to consult bodies or authorities  of high  technical  level  when the points in  dispute  are  of technical nature. [900 G-H] (c) Teaching institutions abroad not being ruled out, it  is right  to reckon as competent and  qualitatively  acceptable those  institutions which are linked with or are  recognised as   teaching   institutions   by   the   Universities   and Organisations in Schedule II and Schedule III and recognised by the Central Government under s.14. Teaching  institutions as  such may be too wide if extended all over the globe  but viewed in the perspective of the Indian Medical Council Act, 1956 certainly they cover institutions expressly embraced by the  provisions of the statute.  If those  institutions  are good enough for the important purposes of ss. 12, 13 and  14 it  is  reasonable  to infer they are good  enough  for  the teaching  experience  gained  therefrom  being  reckoned  as satisfactory. [901 G-H] (d)  The   first   respondent  must  make   out   that   the institutions  in  which he worked fall  within  the  species indicated above.  Prima facie there is no reason to  suspect that the testimonals produced by him are trumped up.  Unless proved  to  the contrary they should  be taken by  a  public authority acting bona fide, at their face value. [902 E] (e)  From the certificates issued by Professors it is  clear that the first respondent who worked as Registrar for  three years did teach.  There are six certificates on record which state  that the first respondent had taken part in  teaching work as Registrar.  Unless serious circumstances  militating against veracity exist fairminded administrators may,  after expert constitutions, rely on them. [902 F-G] (f)  While  it  is difficult to accept the  contention  that

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’assisting’  or  ’participating’ is different  from  ’actual teaching’  it is not for, the Court to finally pronounce  on it,  the  matter being essentially a technical  one.   These matters have to be decided by the appointing authority.[1903 B] (2)  It  was the duty of the Government to be  satisfied  on reasonable materials, that (a) the U.K. hospitals relied  on by  the  1st respondent are teaching institutions;  (b)  the posts  of  Registrar  in which he  worked  for  three  years involved  teaching functions, the question being  looked  at fairly,  not  by semantic hair splitting  and  quibbling  on words like ’participating’ in teaching; (el the testimonials or   written   testimony   from  any   British   or   Indian Orthopedics.   Professor  will be taken at  its  face  value except  where  grave Suspicion taints such  documents,  high placed  academic  men being assumed to be veracious  in  the absence   of   clear  Contrary   indications;   (d)   Indian experience.  if  any,  of the 1st respondent  will  also  be attention, provided it satisfied the dual tests contained in the  regulations.   In the instant case the State  has  made short   shrift  of  the  first  respondent  by   preliminary screening. [904 H: 905 A-B] (3)  When  a writ of certiorari is moved the Court  has  the power to call for the record, but in cases where mala  fides is  not  alleged  or other special  circumstances  set  out, sensitive materials in the possession of the Government  may not  routinely be sent for.  The power of the Court is  wide but  will  have to be exercised judicially  and  judiciously having  regard to the totality of  circumstances,  including the  impropriety  of  every  disgruntled  party  getting  an opportunity  to pry into the file,; of government.  Acts  of public  authorities  must ordinarily be amenable  to  public scrutiny  and not be hidden in suspicious secrecy.  In  this case  the High Court need not have looked into  the  Cabinet papers and back records. [903 D-E] (4)   Although   the   State  need   not   always   make   a reasoned order of appointment, reasons relevant to the ruLes must animate the order.Moreover. an   obligation        to consider every qualified candidate is implicit in the’equal opportunity  right  enshrined  in Arts. 14  and  16  of  the Constitution.Screening a    candidate out of consideration altogether is illegal if the applicant haseligibility under the regulations and for such a drastic step as refusal to  evaluate comparatively that is, exclusion from the  ring of  a competitor manifest ground must appear on the  record. [904 D-E] 896

JUDGMENT: CIVIL  APPELLATE  JURISDICTION.-Civil Appeal Nos.  1430  and 1431 of 1974. From the Judgment and Order dated the 22nd November, 1973 of the Patna High Court in C.W.J.C. Nos. 423 and 430 of 1973. Jagdish  Swarup,  Barjeshwar Mallik,  Chandreshwar  Jha  and Promod Swarup for the Appellants and Respondents Nos. 2  and 3 (In CA No. 1430/74). R.   K.  Garg  and  Pramod Swarup  for  the  Appellants  and Respondents    Nos. 2-4 (In CA No. 1431/74). B.   C. Ghose, S. B. Sanyal and A. K. Nag for Respondent No. 1 (In CA.  No. 1430 and & 1431/74). The Judgment of the Court was delivered by KRISHNA  IYER, J.-We may as well begin this judgment with  a prefatory  sociological  observation.  The  meaning  of  two

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common  expressions  ’teaching  experience’  and   ’teaching institution" incarnated into a legal frame and subjected  to forensic  dissection and examination during three  years  of litigation  makes up this bitter contest between a  talented orthopaedic surgeon and two like rivals trying to break each other’s  academic  bones  to gain the post  of  Lecturer  in Orthopaedics, one in each of two government medical colleges in  Bihar.  Our judicial bone-setting operation cannot  undo the social farcture inflicted by this long expensive bout in court.   Research and reform of ’he system is needed if  the therupeutic value of law is to last and be not lost. The  two  appeals  before us, by  special  leave,  unfold  a musical-chair type situation where three candidates ran  for two posts in the government-run Patna and Dharbanga  Medical Colleges.   Inevitably one lost or, rather, was screened  as ineligible, his British work and experience notwithstanding, and,  chagrined  by  his  discomfiture,  he  Dr.  Mukherjee, challenged  the  whole selection by a writ petition  on  the short  and ambitious ground that he was not  only  qualified but  superior, with his bright British career, to the  other two  India-trained  hands, Dr. Ram and Dr. Jamuar,  but  was illegally rejected as unqualified. The  main issue what arises and was argued before us  by  he State’s  counsel,  supported  by Shri  Garg  for  the  other candidates,  is that the High Court, which allowed the  writ petition,  grievously erred in probing improperly  into  the concerned Cabinet. papers and upsetting government’s  orders of  appointment, upholding the petitioner’s eligibility  and directing  a  reconsideration  of  the  claims  of  all  the contenders   on  certain  untenable  finding  of  fact   and indefensible  interpretation  of law.   Did  the  petitioner possess  the prescribed qualifications for the post ? If  he did,  the High Court was right in directing  the  appointing authority to consider his claims; and if did not  Government rightly   ignored  his  credentials  for  the  post  as   an unqualified    hand,   despite   his   impressive    British testimonials and good showing 8 97 otherwise.   Such  is the compass of the  dispute  which  is basically a technical question but, under our system, has to be decided by courts unaided by expert advice. The  case  has taken three days of argument based  on  three heavy  volumes  of appeal records-mercifully less  than  the eight  days  of  hearing in the High  Court.   The  colossal consumption  of  forensic time, investment  of  considerable litigation  expense  and  the diversion  of  useful  medical energy  of  three young specialists for three years  in  two rounds  of writ contests are the heavy social price paid  by the  community for discovering through court-trained in  law and  not in medicine, and called upon to adventure into  the nature  of  actual  teaching experience  and  the  names  of approved leaching institutions beyond Indian frontiers.  The question  involved is as to whether the writ  petitioner,  a doctor who worked in hospitals in Britain under  orthopaedic professors   supposedly’  of  great  repute,  had   teaching experience  in a teaching institution good enough under  the Indian statute and for the Patna College.  From Olympic team selection  to orthopaedic expertise the judicial  robes  are invited to exercise umpire’s jurisdiction under our  system. Even were Judges angels, should they not fear to tread where perhaps others may rush in ? If  it  equally disturbing that Indian Courts,  in  contrast with some other modern judicial systems, are called upon  to devote  considerable  time  for  oral  arguments  to  decide controversial  issues  even of a simple or a  short  nature.

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Condensed  submissions  and  capsuled  briefs,  familiar  in certain  foreign jurisdictions, and other reforms  may,  per haps  with  modifications, suit our genius.   Here,  in  the higher  Courts, with mild exaggeration, it may  be  remarked that  ’Time  rolls  his ceaseless course’  and  not  unoften ’little   fishes’.   .  .  .  ’talk   like   whales’.    The superstitious regard for long oral hearing and long speaking ordrs  as  a sacred safeguards of justice  may  be  counter- productive of the efficacy of law in the solution of  social issues,  thus  diminishing the ultimate  justness  of  legal justice. Like  in other complex modern operations, the  processes  of legal   justice   call   for   management   techniques   and methodological  reforms,  anD  definition of  the  range  of operation  for  success,  all of which must  be  the  Public concern of the Bench and the Bar (and the community)  alike, animated  by  the  social mission  of  shortening  time  and expense and becoming meaningful in securing justice.   These observations  made en passent, are provoked by  ’-he  tricky meshes  of  the  litigation in which the  parties  here  are caught and the frequent phenomena these tend to be. The petitioner before the High Court.  Dr. Mukherjee, is the 1st  respondent  in both the atppeals before  us  while  the State  of  Bihar,  the Health Commissioner  and  the  Health Minister  are  the atppellants in C.A. 1430  of  1974.   The defeated doctors Dr. Ram and Dr. Jamuar, whose  appointments have been upset by the High Court, are the appellants in the connected appeal No. 1431 of 1974. The  quarrel  is over whether the 1st  respondent  could  be considered for appointment.  Certain peripheral  contentions apart, the core of the 898 matter  is  the  possession by  Dr.  Mukherjee  of  teaching experience  ’as  Regiscrar  for  at  least  three  years  in orthopaedics or allied subjects in a teaching  institution’. Other   basic  qualifications  statutorily  laid   down   he admitedly  has.  Prima facie he has worked for  three  years under  apparently outstanding British orthopaedic  surgeons. Nevertheless,  we  are  called  upon,  in  the  absence   of statutory  definition, to pronounce upon the sufficiency  of this  ’experience  vis  a  vis  the  relevant   regulations. Commonsense suggests that such technical questions should be judge-proof except in glaring ea ses, or malafide  exercise. In  these specialised areas legal tools may not work but  we are  enjoined to decide  the legality of Government’s  order and  so we shall.  Art. 226 of the Constitution has come  to be a universe nostrum but judicial robes are not omniscient. The  whole  case turns on the precise  construction  of  the burred  expression  ’teaching  experience’  in  a  ’teaching institution’  occurring  in the regulations  framed  by  the Medical  Council of India under s. 33 of the Indian  Medical Council  Act, 1956 (hereinafter called the  regulations  and the Act, for short, respectively). The Act has created a statutory body designated the  Medical Council  of India, charged with technical  and  professional responsibilities.  Section 33 vests power in the Council  to make  regulations,  with the approval of the  Government  of India,  laying down qualifications required for  appointment of  persons  to  the teaching and allied  posts  in  medical colleges It is common ground that we are concerned with  two such  medicaf  colleges and to two such  posts.   Under  the relevant  regulation, for a lecturer’s post in  orthopedics, teaching experience in a teaching institution is a sine  qua non.   "We ignore some proposed change  omitting  ’(teaching institution’).  But what is ’teaching experience’?  What  is

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a ’teaching institution’?  Too simple to deserve an  answer, one  might  be  tempted to think;  but  too  abstruse,  when examined in the forensic crucible, to be disposed of in less than 59 pages by the High Court and less than several  hours of  argument  if, this Court.  Legalese makes  complex  what looks simplex. Now  to  the  further  facts and  the  legal  stances.   The Government   of  Bihar  took  the  view,  while   appointing lecturers in Orthopaedics, that the first respondent did not have  the  necessary  teaching  experience  in  a   teaching institution   whereupon  he  sought  refuse  in   the   writ jurisdiction  of  the High Court and filed C.W.J.C.  754  of 1972  contending that he had acquired the required  teaching experience  during the time he worked in the United  Kingdom and  was therefore entitled to be appointed  lecturer.   The State  met  the challenge on many grounds.  Inter  alia,  it urged  that the rule does not recognize teaching  experiance gained  in a foreign country.  A circular letter  issued  by the Deputy Director of Health Services, dated April 14, 1963 was also cited We agree with the High Court (vide para 24 of its  judgment)  that  the said circular  though  adopted  by Governm-nt  on July 13. 1972 had no hearing on  the  crucial issue  of  actual  teaching  ing  experience.   The   Court, however, quashed the decision of Government and directed  it to  reconsider the case of the 1st respondent here  together with  this of the other two.  Government examined the  cases (le novo in obdience to the direction of the Court but again                             899 held   against  the  1st  respondent’s   eligibility.    The aggrieved 1st respondent hurried to the High Court again and succeeded a second time in persuading it to quash the  order and  to issue a writ to the State to. consider the claim  of Dr.  Mukherjee,  the  1st respondent, finding  that  be  did possess  the  requisite experience.  In so  doing  the  High Court  called for and examined the Cabinet papers and  other reports   and  notings  of  the  officers,   technical   and administrative.  The frustrated candidates and the aggrieved State have filed the two appeals assailing the judgment  on the following principle grounds :               (i)   That the teaching experience in teaching               institutions  visualised  by  the  regulations               must  be in India and not abroad.  If this  be               valid,  the          1st respondent  would  be               clean bowled, since his qualifications in this               regard were attained in England.               (ii)The  post  of Registrar  filled  by  Dr.               Mukherjee  in  England had not been  shown  to               carry  among its functions teaching,  so  that               the length of occupancy of that office did not               prove ’teaching experience’ even assuming that               British Medical Institutions could come within               the purview of the regulations.               (iii)In  any  view, the  hospitals,  the  the               Universities to which they were linked,  where               Dr.  Mukherjee  worked were not proved  to  be               teaching institutions either recognised by the               Medical  Council of India or regarded as  such               under  the provisions of the British  National               Health Service Act.               (iv)The  testimonials  produced by  the  1st               respondent  or at least some of them were  not               reliable and could not, without-further proof,               be treated as probative of their contents. A  few  other arguments were  addressed  regarding  relative seniorityor  length of teaching service and  allied  matters

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which  are  not  germaneto the determination  of  the  issue before us.  Maybe such consideration will be pertinent  when the appointing authority makes comparative evaluation  among the  candidates.   The submission by  Shri  Jagdish  Swaroop based on the dichotomy in the National Health Service  Act, 1946(1)  between teaching and non-teaching hospitals has  no substance.  It is true that under s. 11 (8) of that Act  the Minister of Health is authorised to designate as a  teaching hospital any hospital or group of hospitals which appears to him   to   provide  for  any   university   facilities   for undergraduate  or post graduate clinical teaching.  We  have no material to find out whether hospitals not so  designated do  provide  facilities for teaching nor  the  criteria  and purpose  guiding  the  Minister  in  exercising  his  power. Certainly it will be of great help to the 1st respondent  to prove  his case that he hospital he worked in was a  teching hospital bad it come under the notification of the Minister. The converse does not necessarily follow.  We are  concerned with  an Indian situation and called upon to construe  words which are not defined and therefore bear their natural 900 meaning.  In this view we do not proceed to examine  whether the  hospitals  in which the 1st respondent claims  to  have gained teaching experience belong to the category designated under s. 11(8) of the British Act. Section  3  of  the  Indian Act  makes  it  clear  that  the constitution  and composition of a high powered  Council  of professional  men vested with the responsibility to  oversee the conduct of examinations and ensure minimum standards  of medical education is among the ,objects of the statute.  The Council has vast powers including the role ,of consultant in some  vital  matters and according  recognition  of  medical qualifications granted by institutions in India (s. 11),  in countries  with which there is a scheme of  reciprocity  (s. 12)   and   of  degrees  etc.  granted  by   certain   other institutions  (s.  13).  These three categories  of  medical institutions  are covered by Schedules One to Three  of  the Act.  Section 14 relates to recognition by the Government of India  of  medical  qualifications  granted  by  some  other countries abroad, after consulting the Council.  Inspection. collection  of  information, granting  and  withdrawing  of recognition   and  the  like  are  also   ancillary   powers statutorily conferred on the Council.  The regulation by the Council prescribing teaching experience for three Years in a teaching institutions have statutory status.  The provisions of he Act form a conspectus and illumine the meaning of  the subsidiary  legislation.  The Council’s regulation under  s. 33 must be read in this background. It  may straightway be mentioned that while the  expressions medical institution’ and ’approved institution’ are  defined (vide  s.  2), neither ’teaching experience’  nor  ’teaching institution’  has  been  defined  in  ’the  Act,  rules   or regulations.   Simple  Anglo Saxon, the  framers  must  have presumed,   must  be  capable  of  easy  understanding   and interpretation.    Nevertheless,  counsel  have  argued   at learned  length on the semantics of those words although  we are  inclined to take not a pedantic nor artificial view  of the import of these words but a simple common sense idea  of their meaning.  Of course, it would be natural to expect any authority  (like the Bihar Government in this  case)  called upon  to  construe  these words used in  the  setting  of  a medical   statute,  if  in  doubt,  to  consult   the   high professional authority enjoying statutory status, viz.,  the Medical  Council of India.  It was faintly suggested at  the bar that the Council had given a view once but modified it a

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little somewhat later.  We do not find any deviation and are not  disposed to side-track ourselves into such non  germane issues.   ’if  it were true that national  technical  bodies were  shaky on crucial occasions, (although we do  not  find anything like that has happened here). they lend  themselves to  the suspicion that pressure pays We are sure  they  will not expose themselves to this risk.  In the present case the Government  of  Bihar  is  stated to  have  taken  a  policy decision not to consult the Medical Council of India.  While the  appointing  authority is the State Government  and  the responsibility   for  final  choice  vests  in  it.  it   is reasonable  to  consult  bodies or  authorities  of  a  high technical  level  when  the  points  in  dispute  are  of  a technical 901 nature.   To  consult another is not to  surrender  to  that other, but merely to seek assistance in the careful exercise of public power.  All that we mean to emphasize is that  the plain  words we have already referred to, about the  meaning of  which the two sides have betted, should be  read  having due  regard  to  their  normal  import,  statutory  setting, professional object and insistence on standards. Shri Jagdish Swarup, counsel for the State, took us  through the various provisions of the Act and emphasised that by and large the medical institutions the Act had in view and  over which  the Council had control were Indian and not  foreign, and that therefore the ’teaching institutions’ and ’teaching experience’  specified in the regulations in  question  also must  posses  Indian  flavour.   Patriotism  apart,  it   is apparent from the Act that it has recognized medical  insti- tutions in Universities without India (vide s. 12 and s. 14) The  question is not therefore so simple as to be solved  by reference to the Indian map.  This country, while  rejecting colonial reverence for British institutions has continued to accept  and  respect advances made in  medical  specialities abroad, including the United Kingdom and the United  States, as is reflected in the Act.  The India-bound construction is untenable.    Equally  extreme  and  unsustainable  is   the specious  plea  of Shri Desai that any  teaching  experience from  any  foreign  teaching  institution  is  good  enough. Imagine    teaching   experience,   acquired    from    some unmentionably under-developed country which is new to modern medicine  being  fobbed off on an  Indian  College   Reputed institutions  noted for their advanced courses  of  teaching and  training cannot be ignored merely because they  bear  a foreign  badge.   What  we  have to  look  for  is  to  find guidelines within the framework of the Act for fixing  those foreign   medical   institutions.   Such   a   nexus   once, discernible might light up the otherwise illicit expressions ’teaching experience’ and ’teaching institutions’.  We  have therefore to look, at the outset, for indicators in the  Act for deciding which foreign teaching institutions may  safely fall within the scope of regulation.  The whole object is to see  that India gets highly qualified medical  teachers  and this  is  served  neither by narrow  swadeshi  nor  by  neo- colonialism.  but by setting our sights on the lines of  the statute.    Indeed,   the   argument   that   the   teaching institutions  in India alone can be taken rote of  had  been urged and over-ruled in the first round of litigation by the High  Court and the State Government had virtually  accepted that decision when it examined the case of Dr. Mukherjee  in accordance with the direction in writ petition C.W.J.C.  No. 754  of 1972.  Teaching institutions abroad not being  ruled out,  we  consider  it  right to  reckon  as  competent  and qualitatively acceptable those institutions which are linked

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with,  or  are recognised as teaching  institutions  by  the Universities  and organisations in Schedule 11 and  Schedule III  and recognised by the Central Government under  s.  14. Teaching  institutions as such may be too wide  if  extended all  over  the globe but viewed in the  perspective  of  the Indian  Medical  Council  Act,  1956  certainly  they  cover institutions  expressly  embraced by the provisions  of  the statute.   If  those institutions are good  enough  for  the important purposes of ss. 12, 13 and 14, it is reasonable to infer  they  are  good enough for  the  teaching  experience gained  therefrom being reckoned as satisfactory.   In  this view the problem is whether the institutions 902 referred to in the testimonials of Dr. Mukherjee come within the  above  recognised  categories.  We  have  also  to  see whether Dr. Mukherjee’s’ service in those institutions as  a Registrar, even if assumed in his favour, amount to teaching experience.  We will deal with these two decisive  questions presently. We  agree  that bald expressions ’teaching  experience’  and ’teaching  institutions’ with blurred contours have been  at the’  root  of  the controversy but, as  Denning,  L.J.,  in Seaford Court Estates Ltd. v. Asher(,’) observed :               "When  a defect appears a Judge cannot  simply               fold  his hands and blame the  draftsman.   He               must  set to work on the constructive task  of               finding  the intention of  Parliament....  and               then  he must supplement the written words  so               as/to  give ’force and life’ to the  intention               of legislature .... A judge should ask himself               the question how, if the makers of the Act had               themselves  come  across  this  ruck  in   the               texture of it, they would have straightened it               out?  He must then do as they would have done.               A  judge must not alter the material of  which               the  Act is woven, but he can and should  iron               out the creases." We take the cue from these observations in the  construction we. have adopted above. The Indian teaching institutions plea having been over-ruled earlier, its die-hard persistence this time is  unfortunate. Even  so,  the  1st  respondent  must  make  out  that   his institutions  fall  within  the  species  we  have   already indicated.   Prima facie they do and there is no  reason  to suspect  that the testimonials produced by him  are  trumped up.  Unless proved to the contrary they should be taken by a public authority acting bona fide at their face value. Teaching  experience  of  the requisite  period  is  another component   of  qualifications.   A  Registrar,  the   first respondent  was, for three years.  But did he  teach  during that  term ? He did, if we read his certificates  issued  by professors  like Dr. Robert Roaf and Dr.  Geoffrey  Osbrone. The  appellants however have challenged  their  reliability. There  are  6  certificates  now  on  record  and  the   1st respondent is stated to have taken part in teaching work  as Registrar.   You cannot expect to produce those surgeons  in Patna  in proof and unless serious circumstances  militating against veracity exist fair-minded administrators may, after expert consultations, rely on them.  We are sure  Government will  not  depart from fair play in this case  or  stand  on prestige  on  such  an  issue  to  stick  to  their  earlier positions. The State has suggested that some clarificatory testimonials might  have been procured later from the professors  abroad. There  is  nothing wrong in obtaining such  testimonials  to

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clarify  the  position and we see no unusual bias  in  these testimonials    from   such   outstanding   Professors    of Orthopaedics in British Universities. (1)[1949] (2) All.  E.R. 155, 164.                             903 The  simple  question  is  whether  a  Registrar,  like  the petitioner,  did or could acquire teaching  experience.   On the  language  of  those documents there  is  some  marginal doubt, in the sense that he is stated to have  participated’ or ’assisted’ in teaching.  The contention of the other side naturally   is  that  ’assisting’  or   ’participating’   is different from ’actual teaching’.  While we are hesitant  to swallow  such  a  contention it is not  for  us  to  finally pronounce  on  it, the matter being essentialy  a  technical one.   Indeed  we  have restrained  ourselves  from  finally stating whether the institutions in which Dr. Mukherjee  has worked are teaching institutions and whether the Registrar’s post  in which he worked gave him such teaching  experience. These  two  matters  have to be decided  by  the  appointing authority’.  Courts cannot and do not appoint petitioners to posts  they claim but lay down the legal criteria  and  give the  correct  directions, the Executive being the  organ  of State  to exercise, the power to appoint but  in  conformity with the legal directions.  The State Government being  that authority has to take the ultimate decision. There  is  some force in the grievance of  counsel  for  the State that the Court should not ordinarily call for  Cabinet papers  and start scrutinising the nothings and  reports  of the   various  officers  marely  because  a  writ   petition challenging  the  order  has  been made.   When  a  writ  of certiorari is moved, the Court has the power to call for the record, but in case where mala fides is not alleged or other special  circumstances set out, sensitive materials  in  the possession of government may not routinely be sent for.  The power  of  the Court is wide but will have to  be  exercised judicially and judiciously, having regard to the totality of circumstances,   including   the   impropriety   of    every disgruntled  party  getting an opportunity to pry  into  the files of government.  Of course, acts of public  authorities must  ordinarily be amenable to public scrutiny and  not  be hidden  in suspicious secrecy.  W.?, are not satisfied  that the High Court in this, case should necessarily have  looked into-the  Cabinet papers and back records, but the  question has not been argued, except to the extent of mentioning that the Court was not in order although the State Government had produced  the document on a direction.  We leave the  matter at that, for this reason. What  do  the alleged infirmities add up to?   Shri  Jagdish Swaroop  rightly  stressed that once the  right  to  appoint belonged  to Government the Court could not usurp it  merely because  it would have chosen a different person  as  better qualified  or given a finer gloss or different  construction to  the  regulation  on  the score of  a  set  formula  that relevant circumstances had been excluded, irrelevant factors bad influenced and such like grounds familiarly invented  by parties to invoke the extraordinary jurisdiction under  Art. 226.  True, no speaking order need be made while  appointing a  government  servant.  Speaking in  plaintitudinous  terms these  propositions  may deserve  serious  reflection.   The Administration should not be thwarted in the usual course of making appointments because some-bow it displeases  judicial relish or the Court does not agree with its estimate of  the relative  worth of the candidates.  Is there violation of  a fundamental  right,  illegality or akin error of  law  which vitiates the appoint-

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904 ment  ?  The overlooking of  alleged  superlative  abilities claimed by Dr. Mukherjee is not of judicial concern but  of public  resentment  and  individual  injustice,  if  wrongly discarded by an appointing authority-in the absence of proof of bad faith or oblique exercise or other error of law.  Nor is  the  corrective judicial review but an appeal  to  other democratic processes which hold sanctions against  misdoings of any Administration and its minions.  The Court is not  to evaluate comparatively but to adjudicate on legal flaws. Viewed  in  this perspective, was the High  Court  right  in issuing a writ ? We are disposed to say ’yes’.  Undoubtedly, appointments  to posts need not be accompanied  by  speaking orders  or reasoned grounds.  Then the wheels of  Government will  slow  down  to a grinding halt, tardy as  it  is  even otherwise.   And comity of constitutional  instrumentalities forbids unfriendly interference where jurisdiction does  not clearly  exist.  Granting this institutional modus  vivendi, has the Court gone away?  No, and we will give our grounds. While  officious  interference with every  wrong  government order  is not right, here the 1st respondent has  complained of violation of the regulations which bind State and citizen alike.   Although the State need not always make a  reasoned order  of  appointment, reasons relevant to the  rules  must animate the order.Moreover, an obligation to consider  every qualified  candidate is implicit in the ’equal  opportunity’ right  enshrined  in Arts. 14 and 16  of  the  Constitution. Screening  a  candidate out of consideration  altogether  is illegal   if  the  applicant  has  eligibility   under   the regulations.   And  for such a drastic step  as  refusal  to evaluate  comparatively, i.e., exclusion from the ring of  a competitor manifest grounds must appear on the record.  Such being  the legal perspective, let us test the present  order of government by those canons. The  explanatory  affidavit of the appellant State  and  the records fairly produced by it before the Court disclose that Government has adopted a turbid attitude.  Did it  disregard Dr.  Mukherjee  out  of band for  want  of  Indian  teaching experience in an Indian teaching institution ? Shri  Jagdish Swaroop’s  submission is that such experience is  essential. If so, a violation of the regulation, as interpreted by  us, has been committed.  Failing in this the State falls back on another basis that his foreign experience is not shown to be from an approved teaching hospital, which may be clever  but not straightforward.  To be cute in Court may not correspond with being correct in administration.  The 1st  respondent’s case  for  the post has not been considered from  the  legal angle. It was the duty of Government to be satisfied, on reasonable materials, that (a) the U.K. hospitals relied on by the  1st respondent  are  teaching institutions an  explained  by  us after a study of the spirit of the statute; (b) the posts of Registrar  in which he worked for 3 years involved  teaching functions,  the  question  being looked at  fairly,  not  by semantic   hair-splitting  and  quibbling  on   words   like ’participating’ in teaching; (c) the testimonials or written testimony  from  any British (or Indian,  for  that  matter) Orthopaedics Professor will 905 taken at its face value except where grave suspicion. taints such document, high-placed academic men being assumed to  be veracious in the absence, of clear contrary indications; (d) Indian experience, if any, of the’ 1st respondent, will also be  paid  attention, provided it satisfied  the  dual  tests contained  in  the regulation.  We are  satisfied  that  the

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State has made short shrift of Dr. Mukherjee by  preliminary screening. The  nothings  and  reports.  and   vacillating opinions entertained by Government, at various stages do not detain  us  as  they are incidental  to  any  administrative decision  and  cannot  be espied with a  suspicious  eye  by Court.   Governmental ways may not In familiar for  forensic processes but for that reason cannot be suspected. We  have  already observed that at the first flush  the  1st respondent  looks  like eligible and  highly  qualified  but there  may  be  more than meets  the  eye.   Government  may investigate and be satisfied about the real  qualifications. In  the  interests of justice and in view of  the  ambiguous thinking on this question at administrative levels we regard it as necessary to give the candidates time till the end  of January,  1975 to produce evidence of the  1st  respondent’s teaching experience in teaching institutions as  interpreted by  us.   Government will give a fair consideration  to  the qualifications  and  relative worth of all  the  candidates. Length of teaching experience will certainly be a  relevant- not necessarily dominant-factor.  The quality of their expe- rience,  their  academic attainments  and  the  intellectual ability  to  stimulate students in the  speciality  and  the investigative curiosity likely to be imparted to the alumni- these  weighty considerations will promote public weal in  a country  hungering for talented doctors.  Government’s  sole concern, we feel confident, will be to Get the most capable, in the public interest and in- the hope that this happy wish will   not  fail  we  proceed  to  issue   the   substantive declarations and directions. We  declare the orders of appointment of the  appellants  in C.A.  No.  1431  of  1974  as bad  in  law  and  direct  the appellants  in C.A. 1430 of 1974 to reconsider de  novo  the appointments  to the two posts of lecturers.  In  so  doing, the  State  will  act in conformity with  the  findings  and observations made above.  The first respondent’s eligibility on  the  basis of the relevant regulation will  be  examined afresh  before February 15, 1975, the parties,  particularly the 1st respondent,, being at liberty to adduce materials to satisfy  the  State  Government on  his  qualifications  (or otherwise)  on  or  before the last day  of  January,  1975. Government will be free to consult technical authorities  of its own before reaching a decision.  We do not preclude  the right  of the Administration to arrive at its decision  even earlier, fairly dealing with the situation since the  sooner the appoint- 11-346 Sup.CI/75 906 ments  are finalised the better.  While we  have,  indicated the   broad   approach,   it  is  within   the   power   and responsibility   of   Government  to   take   all   relevant considerations and exclude extraneous matters in making  the final choice for the two posts.  We make it clear that there is no obligation to, make any speaking order although  there is  nothing,  which  stands in its Way  in  doing  so.   The appeals  are  dismissed, but we express  our  distress  that three  years  of two rounds of  litigation  involving  young specialists have held up the appointments to medical college posts  thus  hamparing, the process of medical  courses  and adversely  affecting student interest socio  legal  syndrome which   needs  a  closer  diagnostic  procedure.   It   will therefore,  be the duty of the Government not to  delay  the making   of  fresh  appointments  after  receipt   of   such materials,  if  any as may  be produced by  the  candidates. With  these observations, we dismiss the appeals with  costs against the State only, and only in favour of Respondent Dr.

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Mukherjee. P.B.R.                          Appeal dismissed. 907