Full Judgment Text
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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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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.
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