Full Judgment Text
$~27.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7267/2016 & CM APPL.29931/2016
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Decided on: 16 May, 2019
JAI SINGH CHAUHAN ..... Petitioner
Through: Mr. Saqib, Adv.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Paramjit Singh Patwalia, Sr. Adv.
with Mr. Anurag Ahluwalia, CGSC, Mr. Kartikeya
Rastogi & Mr. Gaurav S. Patwalia, Advs. for UOI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
: Rajendra Menon, Chief Justice (Oral)
1. The petitioner has filed this petition claiming to be a public spirited
person and the prayer made in the writ petition reads as under:-
“(a) Call for records of the case pertaining to the selection and
appointment made by the respondents No.1 and 2 to the post of
Secretary (DARE) cum DG (ICAR) in pursuance of the
advertisement published in the Employment News on dt.19-25
December 2015.
(b) issue writ, order or direction in the nature of quo
warranto thereby declaring that the respondents no.1 and 2 had
no authority to select and appoint the respondent no.4 to the
post of Secretary (DARE) cum DG (ICAR); and
W.P.(C) No.7267/2016 Page 1 of 16
(c) issue writ, order or direction in the nature of declaration
thereby further declaring the appointment of respondent no.4 as
Secretary, DARE cum DG, ICAR vide appointment letter
dt.19.02.2016 as illegal and non est in law;
(d) pass such other order and further orders as this Hon‟ble
Court may deem fit and proper in the interest of justice to the
respondents no.1 and 2 to consider for appointment of suitable
eligible person from amongst the candidates shortlisted and
duly recommended by the Search cum Selection Committee to
the post of Secretary, DARE cum DG, ICAR at the earliest in a
time bound manner;”
2. It is the case of the petitioner that an advertisement was issued by the
Ministry of Agriculture and Farmers‟ Welfare, Government of India in the
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Employment News dated 19 / 25 December, 2015 wherein applications
were called for appointment to the post of Secretary, Department of
Agricultural Research and Education („DARE‟) cum Director General,
Indian Council of Agricultural Research („ICAR‟). The educational
qualification and experience indicated in the advertisement read as under:-
“Educational Qualifications and Experience:
(i) The person is expected to have a Ph.D. decree in
agriculture or allied sciences.
(ii) He should have at least 25 years experience in the filed of
agricultural research/education, out of which at least 5 years
experience should be in research management position.
(iii) The person should be in the pay scale of Additional
Secretary to the Government of India if employed under
Government or in the scale of Vice-Chancellor of a University
in UGC pay-scales or in an equivalent pay scale if employed in
University.” ( emphasis supplied )
W.P.(C) No.7267/2016 Page 2 of 16
It is further submitted that the last date for receiving the applications
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and nominations was 18 January, 2016.
3. A two-fold objection was raised with regard to appointment of
respondent No.4 made to the said post: firstly, that he did not have the 25
years experience in the field of agricultural research, out of which 5 years
should have been in the research management position, as required under the
advertised qualification and experience; and secondly, that he did not submit
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any application before the cut off date on 18 January, 2016 instead his
name was included based on the recommendations made by one of the
members of the Search-cum-Selection Committee during the course of its
proceedings later.
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4. Taking us through the official memorandas („O.M.‟s) dated 25
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October, 1994, 5 December, 2003 and 30 July, 2007 the learned counsel
appearing for the petitioner Sh.Saqib vehemently argued that the Search-
cum-Selection Committee was constituted in accordance with the
requirement of these circulars; and the Committee was therefore strictly to
follow the mandate of the advertisement. There could not be any deviation
from mandate of the advertisement and in this case as there are apparent
deviations from the advertisement in the matter of respondent No.4 not
fulfilling the requisite qualification and having not even submitted the
application in time. Therefore, the contention is that a writ of certiorari be
issued and his appointment be annulled.
5. It is submitted that for an appointment to such an important post a
candidate who does not have the requisite experience of 25 years in the field
W.P.(C) No.7267/2016 Page 3 of 16
of agriculture research and education, out of which 5 years should have been
in the research management position, the recommendation made by the
Search-cum-Selection Committee is unsustainable. Learned counsel for the
petitioner took us in detail through the circulars, the bio data of respondent
No.4 and argued that he never submitted the application in pursuance to the
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advertisement till 18 January, 2016; and that his name was placed before
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the Search-cum-Selection Committee on 22 January, 2016 by one of the
members. Even his bio data was collected much thereafter and since the
selection was based on an illegal procedure, the same was not sustainable.
The counsel further argued that in response to the advertisement, 36
applications were received out of which 8 candidates were shortlisted and
their names were placed for consideration before the Search-cum-Selection
Committee. During the course of deliberations of the Search-cum-Selection
Committee, one of its members introduced/nominated the name of
respondent No.4; and in spite of the fact that respondent No.4 did not
possess the experience as required and laid down in the advertisement, his
name was recommended and approved. It was therefore, inter alia
contended that the procedure followed for appointment is patently illegal
and arbitrary in nature; and for this reason, this writ petition has been filed
under Article 226 of the Constitution challenging the appointment in public
interest.
6. The respondents have filed a detailed counter affidavit as also an
additional affidavit. They have tried to justify the action and also challenge
the locus standi of the petitioner in raising the issue in a purported public
interest litigation invoking the extraordinary jurisdiction of this Court under
W.P.(C) No.7267/2016 Page 4 of 16
Article 226 of the Constitution. It is the case of the respondents that the
petitioner is a rank outsider; a resident of the State of U.P.; is a non-official
member of Management Committee of the Indian Grassland and Fodder
Research Institute, Jhansi, U.P.; and his wife is working as a Subject Matter
Specialist in Krishi Vigyan Kendra. The petitioner, on his own showing, is
running a Society in the name of “Society of Extension Education” since last
about 10 years. This society has one Dr.A.K.Singh, Deputy Director
General, Agriculture and who was a contender for the post in question as
one of its Vice Presidents. Serious objections are raised by the respondents
contending that Dr.A.K.Singh who was one of the candidates for the post
that is subject matter of the present petition, has filed this writ petition
through the petitioner who is acting as his proxy. Even though the petitioner
has tried to refute all these contentions but the petitioner does admit in para
5 of the petition that he is running the Society in the name of “Society
Extension Education”; however in the rejoinder the petitioner comes out
with an explanation to say that he is only sponsoring certain awards in this
Society in the name of his late father.
7. That apart, respondents have also relied upon the OM and argued that
the OM contemplates a provision for constitution of the Search-cum-
Selection Committee and the procedure to be followed in the matter of
issuance of advertisement. The learned senior counsel appearing for the
respondent Sh.Paramjit Singh Patwalia emphasized before us the duties and
responsibilities of a Search-cum-Selection Committee constituted for
appointment to such high post of the level of Secretary to the Government of
India; and argued that in this case, the appointment is challenged only on the
W.P.(C) No.7267/2016 Page 5 of 16
alleged ground that certain experience requirements are not met and,
therefore, the appointment is unsustainable.
8. The learned Senior Counsel argued that there is a significant
difference between an ordinary „Selection Committee‟ and a specialized
„Search-cum-Selection Committee‟. It was emphasized that an ordinary
Selection Committee is expected to select and prepare a list of candidates
strictly in terms of the rules and norms prescribed and to place it before a
Selection Committee, whereas a Search-cum-Selection Committee has wide
and inherent powers to search and even recommend candidates most suitable
for the job and also make a selection from the persons searched and/or
recommended. Such power would not be circumscribed by a literal
interpretation of the criteria as regards qualification or experience prescribed
in the advertisement. He emphasized that Committee was not constrained or
restricted to „select‟ a candidate only from amongst those „searched‟ by
some other Committee not only from those who had applied by the deadline.
It would be open to the members of the Search-cum-Selection Committee to
suggest or recommend names in the course of their meetings or
deliberations; and to choose from among all names available before it. It
was argued that in this case, the Search-cum-Selection Committee was
constituted to appoint an officer of the rank of Secretary in the Department
of Agriculture. He was a top-most officer, to advise the Government on
various issues of agricultural research and education and, therefore, a very
high powered Search-cum-Selection Committee was constituted. The
Search-cum-Selection Committee consisted of the Cabinet Secretary; the
Additional Principal Secretary to the Prime Minister; one Sh.P.Balaram,
W.P.(C) No.7267/2016 Page 6 of 16
Former Director, IISc, Bangalore; Dr.T.Ramaswami, Former Secretary,
Department of Science & Technology; Dr.V.L.Chopra, Former D.G., ICAR;
and Dr.P.L.Gautam, Ex-Chairman, Protection of Plant Varieties & Farmers
Rights Authority.
9. It was argued that when such a high level committee constituted by
the Government had gone into the issue of selecting the candidate, in the
absence of any allegations of mala fides, bias or prejudice by any member of
the Search-cum-Selection Committee, a public interest litigation at the
instance of a motivated outsider like the petitioner, should not be
entertained. It was emphasized before us that for appointment to the post of
Secretary in the Department of Agriculture and the Director General, ICAR
there are no recruitment rules or procedure laid down. The appointment to
the post is done on the basis of an executive decision taken from time-to-
time and, therefore, in this case, the high powered Search-cum-Selection
Committee was constituted, with the Prime Minister himself being In-charge
of the Department of Personnel and Training and Head of the Appointments
Committee of the Cabinet, who approved the constitution of the eminent
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members of the committee. The committee met on 3 December, 2015 and
after detailed discussion, it was decided to issue the advertisement, invite
applications/nominations for the post in question. The advertisement was
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issued; the last date for receiving the applications were fixed on 18
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January, 2016. Respondent No.3 vide its communication dated 20
November, 2016 forwarded the applications received. 37 applications were
received and they were considered by the Search-cum-Selection Committee
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in its meeting held on 22 November, 2016. 36 applications were received
W.P.(C) No.7267/2016 Page 7 of 16
before the cut off date. One application was received late.
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10. The Committee in its meeting held on 22 December, 2016 requested
the members to suggest names of other persons they may consider suitable.
One of the members suggested the name of respondent No.4, who at that
relevant time was holding the post of Director–cum–Vice Chancellor, Indian
Agricultural Research Institute („IRAI‟), one of the country‟s premium
agricultural institutes. His bio-data was called for. 8 candidates, including
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respondent No.4, were shortlisted; they were called for interaction on 18
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February, 2016. All the candidates appeared for interaction on 18
February, 2016. It was found that respondent No.4 had 28 years of
experience, including 4 years spent for Ph.D. in the field of agricultural
research and 4 years experience in research management position. It is
submitted that the Committee, after considering all aspects of the matter
which have been detailed not only in the counter affidavit but also in the
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additional affidavit filed on 31 October, 2017, recommended respondent
No.4 for appointment. The recommendation was placed before the
Appointments Committee of the Cabinet, which approved the appointment
whereafter he was appointed to the post.
11. It is the case of the respondents that even though respondent No.4 did
not apply in pursuance to the advertisement but based on the discretion and
powers available with the Search-cum-Selection Committee, one of the
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members nominated his name on 22 January, 2016. His bio-data,
experience etc. were thoroughly evaluated. He was called for interaction
along with other candidates and after evaluating the inter se merit of all the
candidates, the recommendation was made. It is argued by learned senior
W.P.(C) No.7267/2016 Page 8 of 16
counsel appearing for the respondent/UoI and respondent no. 4 that in this
case, the only objection of the petitioner is with regard to the experience of
respondent no. 4 and his nomination without any application in pursuance to
the advertisement.
12. The learned counsel argued that considering the total lack of locus
standi of the petitioner to file the writ petition, his conduct and evident lack
of bona-fides; and the nature of appointment made by such a high-powered
committee, in the absence of there being any allegation of mala fides, bias or
nepotism, interference in the matter in a public interest litigation should not
be done. It was argued that this Court should not and cannot sit in appeal
over the decision of such a high-powered Search-cum-Selection Committee.
It was vehemently argued that a reasoned decision taken by the Committee
based on due consideration of all relevant factors does not call for any
interference, particularly at the instance of a person like the petitioner in a
public interest litigation.
13. Inviting our attention to the law laid down by the Supreme Court in
the case of Basavaiah (Dr.) vs. Dr.H.L.Ramesh & Ors., (2010) 8 SCC 372 ,
Ram Sarup vs. State of Haryana & Ors., (1979) 1 SCC 168 , J.C. Yadav &
Ors. vs. State of Haryana & Ors., (1990) 2 SCC 189 and Krishan Kumar,
Asstt. Secretary, Market Committee, Bhiwani District, Bhiwani (Haryana)
vs. Haryana State Agricultural Marketing Board, Panchkula, (1997) 4
SCC 577 , it was argued that no case for interference in a public interest
litigation is made-out.
14. It was further argued that even if respondent no. 4 did not fulfil some
W.P.(C) No.7267/2016 Page 9 of 16
of the criteria in the advertisement, strictly, as canvassed by the petitioner,
looking into his past experience and the fact that he has already worked now
for more than 3-½ to 4 years in the position, in the absence of any mala fides
or allegations of nepotism or bias against any persons including members of
the Search-cum-Selection Committee, interference in the matter should not
be made.
15. We have heard learned counsel for the parties at length and have
perused the record.
16. This is a petition filed by the petitioner under Article 226 of the
Constitution in the form of a public interest litigation and he is challenging
appointment to the post of Secretary in the Department of Agriculture
Research and Education, Ministry of Agriculture and Farmers Welfare who
also holds the post of Director General in the ICAR. It is an appointment to
a very high post and the appointment, as indicated hereinabove, have been
made on the basis of the recommendation of a high-powered Search-cum-
Selection Committee consisting of 6 eminent persons as detailed in the
preceding paragraphs; the recommendations were approved and considered
by the Appointments Committee of the Cabinet headed by the Prime
Minister of India; and as emphasized by the learned Senior Counsel for the
respondent, there is no allegation of mala fides or bias against any person
including the members of the Committee. It is in the backdrop of all these
factors that we are required to consider whether it is a fit case where
interference should be made by us in exercise of our extraordinary
jurisdiction under Article 226 of the Constitution, that also in a public
interest litigation at the instance of an outsider.
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17. As far as the locus standi of the petitioner is concerned, the petitioner
in para-4 of the writ petition indicates that he joined service under Uttar
Pradesh Government and was introduced to activities of the ICAR for the
first time while he was working as Junior Engineer in the UP PWD
Department posted at Kanpur Agriculture University. He further claims to
be running a society in the name of “Society of Extension Education” for
more than 10 years.
18. From the objections raised by the respondents, it is apparent that the
petitioner is a member of the Society, even though he refutes the same now
in his rejoinder by saying that he is only associated with the Society in the
matter of grant of certain award in the name of his late father. However, the
petitioner does not dispute the fact that Dr.A.K.Singh is the Vice President
of the Society and he was one of the candidates who was aspirant for
appointment to the post in question. That apart, his wife Mrs.Neelam
Chauhan is working as Subject Matter Specialist in Krishi Vigyan Kendra
and she is shown to have some interest in the affairs of the ICAR.
19. In view of all these facts, we are of the considered view that the very
interest of the petitioner in the lis in question is very doubtful and the
petitioner‟s conduct of filing the writ petition for extraneous consideration
or reasons to help somebody cannot be refuted. It is in the backdrop of these
facts that we are required to consider the allegations made.
20. The appointment is challenged primarily on two grounds; one that
respondent No.4 does not have the requisite experience of 25 years in the
field of agriculture out of which 5 years is required to be in a research
W.P.(C) No.7267/2016 Page 11 of 16
management position. Even though respondents do state that in the strict
sense this requirement may not be fulfilled by the respondent No.4 but we
find from the material that has come on record that respondent No.4 has
done Ph.D in Agriculture Science, has 28 years of experience which
includes 4 years spent on the Ph.D. The Search-cum-Selection Committee
considered his name and approved his appointment. Once a high powered
Search-cum-Selection Committee has approved the appointment of a person,
in the absence of any allegation of mala-fides the question would be as to
whether this Court can sit in appeal over the decision of such a high
powered committee and substitute its decision for that of the Committee. In
this regard in the case of Dr.Basavaiah (supra) in paras-20 to 23, the
Supreme Court has decided the issue in the following manner:-
“20. It is abundantly clear from the affidavit filed by the
University that the Expert Committee had carefully examined
and scrutinised the qualification, experience and published
work of the appellants before selecting them for the posts of
Readers in Sericulture. In our considered opinion, the Division
Bench was not justified in sitting in appeal over the unanimous
recommendations of the Expert Committee consisting of five
experts. The Expert Committee had in fact scrutinised the
merits and demerits of each candidate including qualification
and the equivalent published work and its recommendations
were sent to the University for appointment which were
accepted by the University.
21. It is the settled legal position that the courts have to show
deference and consideration to the recommendation of an
Expert Committee consisting of distinguished experts in the
field. In the instant case, the experts had evaluated the
qualification, experience and published work of the appellants
and thereafter recommendations for their appointments were
W.P.(C) No.7267/2016 Page 12 of 16
made. The Division Bench of the High Court ought not to have
sat as an appellate court on the recommendations made by the
country's leading experts in the field of Sericulture.
( Emphasis supplied )
22. A similar controversy arose about 45 years ago regarding
appointment of Anniah Gowda to the post of Research Reader
in English in Central College, Bangalore in University of
Mysore v. C.D. Govinda Rao [AIR 1965 SC 491] in which the
Constitution Bench unanimously held that normally the courts
should be slow to interfere with the opinions expressed by the
experts particularly in a case when there is no allegation of
mala fides against the experts who had constituted the Selection
Board. The Court further observed that it would normally be
wise and safe for the courts to leave the decisions of academic
matters to the experts who are more familiar with the problems
they face than the courts generally can be.
23. We have been called upon to adjudicate a similar matter of
the same University almost after half a century. In a judicial
system governed by precedents, the judgments delivered by the
Constitution Bench and other Benches must be respected and
relied on with meticulous care and sincerity. The ratio of the
Constitution Bench has not been properly appreciated by the
learned Judges in the impugned judgment.”
( Emphasis supplied )
21. From the aforesaid, it is clear that the legal position affirmed by the
Supreme Court is that in such matters, Courts have a very limited role to
play, particularly when no mala fides have been alleged against the experts
constituting the Search-cum-Selection Committee. The Hon'ble Supreme
Court holds that it would normally be prudent and safe for the Courts to
leave the decision to academician and experts. As a matter of principle, it is
held that Courts should not make an endeavour to sit in appeal over the
W.P.(C) No.7267/2016 Page 13 of 16
decision of experts. The Courts must realize and appreciate their constraints
and limitations in academic and such like other matters. In this case, the
respondents do admit that to some extent respondent No.4 may not in the
strict sense be fulfilling the experience requirements but looking into his
overall performance in the field, a high level committee consisting of
experts in the field has approved his appointment, therefore this Court
should not make any indulgence in the matter. In our considered view, the
aforesaid submissions of the senior counsel appearing for the respondents
deserve to be accepted.
22. In the absence of any mala fides alleged against the Committee
members, they are deemed to have conducted the proceedings in the manner
which is proper and legal and in accordance with the requirement of law and
even if there was some shortcomings in the experience requirements, the
same was taken note of and approved because of the eminence, expertise
and other considerations which weighed in favour of respondent No.4.
These are matters decided by experts and this Court is not required to sit in
appeal over such a decision.
23. As far as respondent No.4 not submitting the application in pursuance
to the advertisement before the cut off date is concerned, the Search-cum-
Selection Committee, as canvassed by the learned Senior Counsel, is not an
ordinary Selection Committee. They are experts in the field, have
knowledge not only of the subject matter but also of who are the persons of
proven eminence working in the field and who substantively fulfil the
requirements of the job to which selection is to be made; and if they
nominate a person who may not have applied, looking to his eminence,
W.P.(C) No.7267/2016 Page 14 of 16
expertise and knowledge of the subject, in the absence of any mala fides in
this regard alleged or proved, the wisdom of the experts is not to be taken
lightly or interfered with by this Court by reason of some irrelevant
technicality, that too at the instance of a person whose locus to file this
petition is doubtful and who prima facie seems to be put-up by somebody
else for assailing the selection process.
24. That apart, as canvassed by the learned Senior Counsel, even if there
were some shortcomings in the requirements/qualification of respondent
No.4, the Supreme Court in the case of Ram Sarup (supra) in para-3 has laid
down a proposition that the requirement of minimum experience in holding
a post even though not satisfied, the appointment would only be irregular
and can be regularized if a person has subsequently worked and acquired the
necessary experience, and such appointment can be approved. The said
principle would squarely apply in this case also.
25. Similarly, in the case of J.C. Yadav (supra) relied upon by the learned
Senior Counsel, in para-12, with regard to qualification, the principle laid
down in the case of Ram Sarup (supra) has again been approved by the
Hon'ble Supreme Court. Thereafter, in the case of Krishan Kumar (supra)
in the matter of recruitment and fulfilment of eligibility conditions, it has
been held that once the person has worked on the post and has acquired the
requisite experience, the same can also be taken note of while considering
the question of annulling his appointment when challenged after certain
period of time.
26. If we analyse the totality of circumstances in the present case, we find
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that (a) this is a public interest litigation wherein a writ of certiorari is
sought for in exercise of our extraordinary jurisdiction under Article 226 of
the Constitution, that too by a person whose locus standi to file this writ
petition his highly questionable and doubtful; (b) that challenge to the
appointment is made primarily on the ground that one of the essential
conditions with regard to experience is not fulfilled by respondent No.4 but
the overall experience, knowledge and expertise of respondent No.4 has
been evaluated by eminent experts in the field in question who were
members of the Search-cum-Selection Committee and they have found him
suitable for appointment to the post. Their wisdom and discretion exercised
cannot be subject to interference by judicial review by this Court since this
Court cannot exercise appellate jurisdiction over the decision of the expert
body. That apart, (c) there is no allegation of mala fides or bias against any
person or authority involved in the selection and appointment process; and
once the authorities have taken a decision for appointment to such a high
post based on recommendations made by domain experts, we see no reason
to interfere, exercising our extraordinary jurisdiction in a public interest
litigation.
27. Accordingly, finding no merit, the petition stands dismissed along
with the pending application.
CHIEF JUSTICE
ANUP JAIRAM BHAMBHANI, J
MAY 16, 2019
‘anb’
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