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State of Bihar & ANR Vs. Dr. Asis Kumar Mukherjee & Ors [1974] INSC 257 (3 December 1974)

KRISHNAIYER, V.R.

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 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 there from 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 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. [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 '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 has eligibility 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

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 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 the 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.

Condensed submissions and capsuled briefs, familiar in certain foreign jurisdictions, and other reforms may, perhaps 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 un often 'little fishes'. . . . 'talk like whales'. The superstitious regard for long oral hearing and long speaking ordrs as a sacred safeguards of justice may be counterproductive 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 patient, 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 medical 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 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 experience 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 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 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 teaching 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 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 institutions 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 neocolonialism. 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 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 Roof 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 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 appointment? 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 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 experience, their academic attainments and the intellectual ability to stimulate students in the specialty and the investigative curiosity likely to be imparted to the alumnithese 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 appointments 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. Mukherjee.

P.B.R. Appeal dismissed.

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