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1970 DIGILAW 61 (KAR)

N. M. PRABHU v. STATE OF MYSORE

1970-05-25

GOPIVALLABHA IYENGAR, HONNAIH

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( 1 ) IN March 1969, the third respondent, Director of Health Services, issued a notification calling for applications for the post of one Honorary Medical officer (Surgery) and one post of Honorary Medical Officer in Optholmology in the Karnataka Medical College Hospital, Hubli. The petitioner in WP. No. 320 of 1970 made an application for the post of Honorary medical Officer in Surgery and the petitioners in WPs. Nos. 358 and 515 of 1970 made their applications for the post of Honorary Medical Officer in Optholmology. By the Notification dated 17/19 Janurary 1970, the first respondent-State of Mysore, appointed the second respondent in WPs. Nos. 358 and 515 of 1970 as Honorary Medical Officer ha Optholmology and the second respondent in WP. No. 320 of 1970 as Honorary Medical Officer in Surgery. ( 2 ) THE contention of the petitioner in WP. No. 358 of 1970 is that he has been selected by the Selection Committee under Rule 4 (a) of the Rules regulating Recruitment and the conditions of Service of Honorary Medical officers and Honorary Assistant Medical Officers of Medical Institutions, 1960 (hereinafter called the Rules ). It is further stated by him that the third respondent has also recommended his appointment as Honorary medical Officer in Optholmology and that he should have been appointed by the first respondent. It is contended that there has been no recommendation in so far as the second respondent is concerned and that without a recommendation by the third respondent, the Government cannot make the appointment. The contention of the petitioner in WP. No. 515 of 1970 is the same. ( 3 ) IN WP. No. 320 of 1970, the contention of the petitioner is that the second respondent therein has not been recommended by the third respondent, and therefore, the appointment of the second respondent therein by the first respondent is also not in accordance with the Rules. Hence the petitioners have filed these writ petitions praying that the Government notification aforesaid be quashed. The prayer for the issue of a direction to the first respondent to appoint the petitioner in WP. No. 358 of 1970 as Honorary Medical Officer in Optholmology was not pressed. In the affidavit filed by the first respondent-State, the allegation that the third respondent has recommended only the appointment of the petitioner in WP. No. 358 of 1970 is not definitely controverted. No. 358 of 1970 as Honorary Medical Officer in Optholmology was not pressed. In the affidavit filed by the first respondent-State, the allegation that the third respondent has recommended only the appointment of the petitioner in WP. No. 358 of 1970 is not definitely controverted. But, the learned Government Pleader has made available to us the original papers relating to the appointment made by the first respondent under the Notification of appointment viz. , Ex. D, in WP. No. 515 of 1970 which covers the appointment of the second respondent in WP. No. 320 of 1970 and also the second respondent in WP. Nos. 358 and 515 of 1970. ( 4 ) THE communication sent by the third respondent to the first respondent discloses that in respect of the appointment of the Honorary Medical Officer for surgery there is no recommendation made by the third respondent in respect of the second respondent in WP. No. 320 of 1970. In respect of the appointment of Honorary Medical Officer in Optholmology, it is found that there is no recommendation of the second respondent in WP. Nos. 358 and 515 of 1970, but, it is found that the third respondent has recommonded only the petitioner in WP. No. 358 of 1970 the contention of the petitioners in these writ petitions is that the first respondent has made the appointment of candidates who have not been recommended by the third respondent, and therefore, the appointment is not sustainable. Reliance is placed by the petitioners on the provisions of Rule 4 (a) of the Rules, which is as hereunder :"4. Selection and appointment- (a) Teaching Institutions: - appointments will be made by the Government on a consideration of recommendations made by the Director of Medicial Services. In making his recommendation, The Director of Medical Services shall consult a Committee, consisting of the Principal of the Teaching institution, the Superintendent of the attached Hospital and the honorary Medical Officer on the staff. " ( 5 ) IT is argued for the petitioners that before an appointment is made by the first respondent, it has to consider the recommendation made by the third respondent i. e. , the Director of Medical Services. It is pointed out that the existence of a recommendation in respect of a candidate is necessary before the same can be considered by the Government before making the appointment. It is pointed out that the existence of a recommendation in respect of a candidate is necessary before the same can be considered by the Government before making the appointment. From the records made available to us by the learned Government Pleader and from the averments made by the petitioners in their affidavits, it is seen that there has been no recommendation in so far as the second respondent in each of the petitions is concerned. ( 6 ) IT is contended by Sri M. Rama Jois, the learned Counsel appearing for the second respondent in WP. No. 358 of 1970, and the learned government Pleader, that recommendation need not be in respect of any particular applicant. If the third respondent recommends even one of the applicants from out of several who might have applied for the post, that would be enough to justify the appointment by the Government of any one of the applicants after considering the recommendation in respect of one of them. This argument proceeds on the basis that recommendation need not be in respect of each or any particular applicant. ( 7 ) EVEN if it is in respect of one, that would be sufficient compliance with, the requirement of the Rule 4 (a) of the Rules. It is further contended that whether the communication by the third respondent is in favour of a particular candidate or against the appointment of any other candidate, it would be immaterial as long as there is a recommendation of one of the, candidates to the appointment. We are unable to accept these contentions. The word 'recommend' in the dictionary meaning means 'speak of, write of or suggest as fit for employment or favour or trial'. Therefore, in the context of the relevant rule recommendation can be in respect of a person for appointment and it covers an idea that he is fit in the opinion of the recommending authority to be appointed for the post by the appointing authority. If there is no expression of this type, i. e. , recommendation by the third respondent, the communication by him would be merely an expression of an innocuous or neutral opinion or a mere remark. If there is no expression of this type, i. e. , recommendation by the third respondent, the communication by him would be merely an expression of an innocuous or neutral opinion or a mere remark. What is provided for in Rule 4 (a) of the Rules is a recommendation, i. e. , with a positive expression of opinion by the Director of medical Services that a particular person is or persons are fit to be appointed for the post advertised. The authority to whom the recommendation is conveyed is sought to support it or favour it. It is only oh a consideration of such recommendation, that appointment will be made by the Government. If there is no recommendation in so far as the second respondent in each of these petitions, then the question of considering the recommendation would not be possible. Therefore, there is considerable force in the contention of the petitioners that there was no recommendation which is required to be considered under the provisions of Rule 4 (a) of the Rules by the Government before the appointment is made. It is pointed out by Sri S. S. Joshi, the learned Counsel appearing for the second respondent in WP. No. 320 of 1970, that his appointment has been recommended by the third respondent, but, there is a mistake in mentioning "honorary Assistant Medical Officer" in the place of "honorary Medical officer". In the absence of any statement to this effect by the third respondent, we are not in a position to say whether what is contained in the communication of the third respondent to the first respondent is a mistake. It is pointed out that the application of the second respondent in WP. No. 320 of 1970 was in respect of Honorary Medical officer. This is controverted by the petitioner's Counsel. Therefore, this is not a matter on which we can make anv definite pronouncement. For the present purpose, it is enough to say that the recommendation of the third respondent being an essential requisite, which must be considered by the government before the appointment is made, the appointments now made by the first respondent without the recommendation of the third respondent, with reference to respondent 2 in each of these writ petitions are invalid. For the present purpose, it is enough to say that the recommendation of the third respondent being an essential requisite, which must be considered by the government before the appointment is made, the appointments now made by the first respondent without the recommendation of the third respondent, with reference to respondent 2 in each of these writ petitions are invalid. It is contended by the respondents that the Government has ample power to make the appointment and it is not incumbent on the Government to accept the recommendation of the third respondent. Latter part of this submission is not controverted by the petitioners. It is open to the government not to accept the recommendation made bv the third respondent in making the appointment, but, it is necessary that there should be a recommendation bv the third respondent which requires to be considered bv the government before the appointment is made. If the argument of Sri M. Rama Jois that if there is a recommendation in respect of one candidate and on a consideration of that, Government may proceed to appoint anv candidate is accepted, then it would nullify the very basic requirement of Rule 4 (a) of the Rules. Rule 4 (a) of the Rules provides for recommendation by the third respondent. He in turn should be guided by a Selection Committee consisting of the Principal of the Teaching institution, the Superintendent of the attached Hospital and one Honorary medical Officer on the staff, indicating thereby that the recommendation of the third respondent is not a mere formality, but is an essential requirement inasmuch as it represents an expert opinion on the competency and fitness of the applicant for appointment. ( 8 ) IN these circumstances, the Notification of appointment of the second respondent in each of these writ petitions cannot be sustained. The Notification dated 17/19 January 1370 (Ex. D in WP. No. 515/1970) is hereby quashed. The first respondent State of Mysore is free to take such further action as is open to them under the provisions of the Rules, there will be no order as to costs. --- *** --- .