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2006 DIGILAW 920 (PAT)

Bhupendra Nath Singh v. Union Of India

2006-10-11

J.N.BHATT

body2006
Judgment J.N.Bhatt, J. 1. By this writ petition, the petitioner has questioned his non-selection for the post of Director of Nava Nalanda Mahavihara, Research Institute (Institute) situated in Nalanda in the State of Bihar, by invocation of the provisions of Article 226 of the Constitution of India. The question, therefore, which emerges for consideration and adjudication in this writ application under Art. 226 of the Constitution of India is whether the selection of respondent No. 8 Dr. Ravindra Kumar Panth -- alias Ravindra Panth, for the said post is justified or not? 2. In order to appreciate the merits of the petition and the challenge against it, let there be, at this stage a skeletal projection of factual profile relevant to the aforesaid issue and material legal proposition. First of all, a chronology of events as culled out from the records of the case, is necessary. CHRONOLOGY OF EVENTS DATEEVENTS 1.17.5.1999An advertisement for appointment to the post of Director, Nava NalandaMahavihara, was issued in Hindustan Times, an English daily from- Patna under the signature of OSD to Governor, RajBhawan Secretariat, Patna (Annexure -1 ). 2.2.9.1999An interview letter (Annexure 2) was issued to the petitioner under the signature of Deputy Secretary, Government of India, Ministry of Human Resources Development, Department of Culture, New Delhi, for "Personal Talk" with the Selection Committee on 21.9.1999 at 11 a.m. in the office chamber of the Secretary, Department of Culture. 3.18.4.2000An interlocutory application (I.A. No. 2515 of 2000) was filed in this writ application by the petitioner making a prayer to add RavindraPanth as party - respondent and also to direct the respondents not to proceed with implementation of order appointing the said Ravindra Kumar Panth as Director. It was alleged that Ravindra Path was under employment at "Vipassana Research Institute, Dhammagiri, Igatpuri, Maharashtra. By order dated 6.1.2005. the said Ravindra Kumar Panth has been added as Respondent No. 8. 4.4.4.2000.Appointment of Dr RavindraPanth against the post of Director, Nava NalandaMahavihara was published in Hindi daily "Hindustan" published from Patna (Annexure 4) . 5.17.11.2000The petitioner filed a supplementary affidavit in this case, inter alia, stating that he faced interview on 21.9. 1999. The Interview Board approved three names, namely, (i) Dr SatyapalBhikhu, (ii) Dr RavindraPanth, and (iii) Bimlendu Kumar. 4.4.4.2000.Appointment of Dr RavindraPanth against the post of Director, Nava NalandaMahavihara was published in Hindi daily "Hindustan" published from Patna (Annexure 4) . 5.17.11.2000The petitioner filed a supplementary affidavit in this case, inter alia, stating that he faced interview on 21.9. 1999. The Interview Board approved three names, namely, (i) Dr SatyapalBhikhu, (ii) Dr RavindraPanth, and (iii) Bimlendu Kumar. 6.14.2.2001.I.A. No. 810 of 2001 has been filed to permit the petitioner to challenge the legal validity of the advertisement and proceeding dated 30.3.2000 of Nava Nalanda, Mahavihara and the offer of appointment of Respondent No. 8 to the post of Director of the Institute as also to restrain him from functioning as Director. 7.4.12.1990.Services of the employee of the Institute has been transferred to the Culture Department, Ministry of Human Resources Development, Government of India, by the State of Bihar on request vide Resolution No. 936 dated 4.12.1990 (Annexure-6). 8.14.2.1992.Terms and conditions were proposed by the Government of Bihar in regard to service conditions of the staff and officers as also financial implications (Annexure 7). 9.17.11.1993A letter was sent by the State Government, Bihar, to the Government of India, regarding issuance of authority to sign the Memorandum of Association on behalf of the State Government (Annexure-8). 10.7.12.1993Resolution was issued by the Culture Department of Ministry of Human Resource Development regarding composition of the Society (Annexure-9). 11. .30.3.2000.A meeting of the Board of Management of the Institute was held at RajBhawan in which appointment of Professor/Assistant Professor and Director of the Institute was considered (Annexure-11) 12. 15.4.2000D.O. Letter No. 1042 was issued by the Secretary to Governor, Bihar to Sri NavneetSoni, Deputy Secretary intimating that the Board of Management of Nava NalandaMahavihara had accorded its approval to the appointment of Dr RavindraPanth as the Director of the Institute ( Annexure-12) . 3. The respondent No. 8 has filed a counter affidavit wherein, inter alia, the claim of the petitioner and the allegation in the petition have been traversed and it has been contended that the selection of respondent No. 8 for the post of Director of the Institute is in consonance with the provisions of law, as well is based on merits and the selection was made by the expert committee. 4. 4. During the course of hearing, learned Counsel for the petitioner has raised, mainly, the following contentions: (i) Issuance of advertisement or notice inviting applications for selection to the post of Director of the Institute was by an authority which was not competent to do so and, therefore, there is defect at the initial stage which has made the impugned appointment fatal; (ii) "Personal talk" in respect of interview for selection on the post of Director of the Institute is a wrong devise and is an eye wash. Instead, there should have been regular interview so that the petitioner could have explained the entire situation; (iii) The said "personal talk" was not organized by the Board which was competent to do so; (iv) the appointment to such a post has been wrongly made by the Ministry of Human Resources Development, Department of Culture, Government of India as it ought to have been made by the Board of Management of the Institute; (v) the whole selection process right from inception till conclusion shall stand vitiated as it was not in consonance with the principles of natural justice and was in violation of the resolution passed by the Government of India in the Department of Culture and Human Resources Development. 5. The learned Counsel for the respondents has countered the aforesaid submissions and has contended that the entire selection processe has been made in accordance with the requirements of the rules and no irregularity has been committed. It is further submitted that the selection is based purely and simply on merit and there is no allegation of bias, mala fide or any perversity. The selection of such high ranking office is made by a team of experts, members of which are well versed in their field and, as such, selection should not be interfered with by the judiciary as it would affect the autonomous status of the body of this Institute. 6. Learned Counsel for the petitioner has also placed reliance on the decisions of the Hon ble Apex Court in the following cases: (i) - (A.K. Kraipak and Ors. V/s. Union of India and Ors.) (ii) AIR 1988 SC 218 (Bharat Singh and Ors. V/s. The State of Haryana and Ors. ) (iii) - (Union of India and Ors. V/s. M. Bhaskaran). 7. V/s. Union of India and Ors.) (ii) AIR 1988 SC 218 (Bharat Singh and Ors. V/s. The State of Haryana and Ors. ) (iii) - (Union of India and Ors. V/s. M. Bhaskaran). 7. Since the aforesaid points are interlinked and interwoven, in so far as appreciation of merits of the petition are concerned, they are being dealt with simultaneously. 8. As such, the factual aspect highlighted hereinabove is not in much controversy. The allegation is that non-selection of the petitioner and selection of respondent No. 8 for the post of Director of Institute made by the Human Resources Development Department has been vitiated on the ground raised in the submissions, as aforesaid. 9. Let it be mentioned at this stage that there are following certain admitted facts which are very vital and relevant for the adjudication of the controversies raised in this petition: (i) The petitioner, in pursuance of his application, for appointment to the post of Director in the Institute, was invited by the respondent authority for interview which is branded in this case as "personal talk" and he did appear. (ii) Respondent No. 8 Dr Ravindra Kumar Panth alias Ravindra Panth was also one of the candidates for the said post. (iii) A Selection Committee was constituted by the authority competent to do so and it consisted of four members and the selection for the post in question, like that of Director of the Institute, has been made by the Selection Committee which has been approved by the Government of India and, accordingly, appointment of Respondent No. 8 has been made and he has been working as such since 24.4.2000. (iv) There is no allegation of mala fide. There is no any allegation of bias and there is no allegation of prejudicial perversity in the appointment in question. 10. At this stage it would be expedient to highlight the main jurisprudential concept and principles governing the appreciation of such a challenge on the anvil of the provisions of the writ jurisdiction under Art. 226 of the Constitution. Unquestionably, one has to see whether any illegality or irrationality or any perversity is perpetrated in the matter of selection. The Writ Court does not function as appellate authority. The writ Court does not go into the disputed question of facts. Unquestionably, one has to see whether any illegality or irrationality or any perversity is perpetrated in the matter of selection. The Writ Court does not function as appellate authority. The writ Court does not go into the disputed question of facts. Ordinarily, the Court will be at loath to interfere with the selection and choice made by an authorised expert body on merits. As far as possible the autonomous stature of such an Institute should not be transgressed. 11. In the case of judicial review of the administrative action and that too in a case like one on hand, where selection is made for such a post in the Institute by expert authority, the writ Court has supervisory jurisdiction in which, aforesaid aspects shall influence the decision making process. Ordinarily, it is settled proposition of law that the Writ Court under Article 226 is not very much concerned with the project or outcome of the process of selection. What it concerns is the decision making process itself. If the decision making process is, reasonably shown to be or has been spelt out from the record of the given case not in accordance with law, only then it would stand vitiated by any consideration like irrationality, illegality, unreasonableness, perversity and in violation of the provisions of law. 12. This basic background has to be kept on the mental radar for consideration of the merit of the claim in a case like one on hand. 13. Let it be mentioned that it is not the case of the petitioner that respondent No. 8 was not qualified or eligible for being considered. The case of the petitioner has been that he is more meritorious than respondent No. 8 who has been selected by the expert body. It is the self assessment of the petitioner of having become more meritorious whereas respondent No. 8 has been found more meritorious by the expert committee. To judge whether respondent No. 8 or petitioner is more meritorious is not the function of the Writ Court. It is the exclusive function of the expert body and when expert body has considered such aspect with relevant material proposition, information and literature, the Court cannot sit in appeal over the subjective satisfaction based on merit and objective consideration. As such, the Court is concerned to examine whether the selection making process is tainted or polluted, or not? It is the exclusive function of the expert body and when expert body has considered such aspect with relevant material proposition, information and literature, the Court cannot sit in appeal over the subjective satisfaction based on merit and objective consideration. As such, the Court is concerned to examine whether the selection making process is tainted or polluted, or not? If it is found to be tainted or polluted, selection shall be a nullity and will be declared as void. If the selection process itself is found in consonance with the rule provisions, it cannot be said that the selection made by the expert should be reconsidered and reevaluated or that the material which was considered by them should be reappreciated as to whether the final outcome is justified or not? 14. This Court is unable to uphold the contention that advertisement (Annexure-1) issued for the post of Director is illegal. It is issued by the OSD to the Governor, Rajbhawan Secretariat, Patna in Hindustan Times, (English Edition, Patna) on 17.5.1999. This Court is also unable to uphold the contentions that non-inclusion of some of the members of the Administrative Board of the Institute will also vitiate the selection process. The Selection process has been conducted by specially constituted Committee of experts which has given opportunity to the eligible and qualified Professors including the petitioner to appear before it for "personal talk". 15. On behalf of the respondents, it has been contended that the writ petition suffers from suppressio veri, suggestio falsi as the petitioner has not disclosed the previous history in relation to this post and has made an attempt to thwart the selection process earlier made. It is contended further that a Public Interest Litigation viz. CWJC No. 7972 of 2000 (Ram Pravesh Rajak and Anr. V/s. The Union of India and Ors.) in respect of the appointment of the post of Director of the Institute was filed, unsuccessfully, and it was dismissed on 23.2.2001 with an observation of this Court. It has been brought out from the counter affidavit that another writ petition bearing CWJC No. 734 of 2001 was filed by Dr. Awadesh Prasad against the Union of India and others challenging the appointment of respondent No. 8 as Director as well as, constitution of the Board of Directors of the Institute which finally came to be withdrawn. It has been brought out from the counter affidavit that another writ petition bearing CWJC No. 734 of 2001 was filed by Dr. Awadesh Prasad against the Union of India and others challenging the appointment of respondent No. 8 as Director as well as, constitution of the Board of Directors of the Institute which finally came to be withdrawn. It is further stated in the counter affidavit that one more case being CWJC No. 1431 of 2001 was filed by one Dr. Bhikshu Satyapala challenging the appointment of the Director of the Institute and constitution of the Board of Directors of the institute which came to be dismissed with observation. However, it may be mentioned that the petitioner was not a party in any one of the earlier proceedings. Therefore, this Court would not divulge in that aspect in greater details. 16. It may be brought that the institution has been designed and devised with an object and purpose in the year 1951 for the promotion of higher studies and research in Pali language and literature and Budhology through Sanskrit, Tibetian, Chinese, Mangola, Japanese and other Asian languages vis-a-vis to organise an upto date library of the Budhist literature in Pali, Sanskrit and other languages comprising modern publication and research work of Pali and Budhology. 17. In similar round of litigations, petitioners had raised the same claim and one of them was Public Interest Litigation stating that each one of them is more meritorious than respondent No. 8 but all were unsuccessful. It is really very surprising that for petty gains in academic world of such an autonomous body such type of unhealthy competition is growing. 18. The petitioner was terminated from service by order No. 145/86 on 2.8.1986 by the Principal Secretary cum - Director, Nav Nalanda Mahavihar and since then he was not in service although a writ petition was filed challenging the impugned order in CWJC No. 6373 of 1991. Thereafter, second writ petition bearing CWJC No. 6264 of 1992 was filed challenging the termination which was made retrospective and lastly the third writ petition being CWJC No. 6154 of 2001 was filed by the petitioner claiming the salary as well as authentication as Professor of Pali at the Institute. Thereafter, second writ petition bearing CWJC No. 6264 of 1992 was filed challenging the termination which was made retrospective and lastly the third writ petition being CWJC No. 6154 of 2001 was filed by the petitioner claiming the salary as well as authentication as Professor of Pali at the Institute. The petitioner had- earlier challenged the order of termination in CWJC No. 4264 of 1992 and a Division Bench of this Court while hearing the matter, by order dated 27.9.1993, held that termination order shall be effective from the passing of the order of termination which came to be recorded on 6.5.1992. 19. Whether the petitioner is in service or not is a disputed question of fact since he was never asked to join the service by the competent authority as per the affidavit and reply file by respondent No. 8. It is also stated further in the affidavit that the petitioner had never participated in imparting teaching, as Professor of Pali, to the students of Nalanda Mahavihara. It has also emerged from the counter affidavit that the work of the newly appointed Director is appreciated even by His Excellency the President of India, Dr APJ Abdul Kalam, who visited the institute on 30th May, 2003. This Court is not concerned with the comparative matter as it is required to find whether the process of selection is in any way bad, unjust, irrational, or illegal or not? Such examination of merit will fall within the domain of the Selection Committee which consisted of the experts. 20. It is also found from the record that initially the Institute was under the administrative control of the Government of Bihar but by the order of the Ministry of Human Resources, Department of Culture, it became an autonomous organisation under the Societies Registration Act headed by his Excellency the Governor of Bihar. It is, therefore, the advertisement in the Hindustan Times (English Edition) was published by the ADC to the Governor. It cannot be said that the notice was not legal. Apart from that, the question whether the advertisement is issued by the competent authority or any other person will carry some weight only if there is a case of the breach of the principles of natural justice or serious prejudice to the party which is not the case here. 21. It cannot be said that the notice was not legal. Apart from that, the question whether the advertisement is issued by the competent authority or any other person will carry some weight only if there is a case of the breach of the principles of natural justice or serious prejudice to the party which is not the case here. 21. This Court has examined the three decisions relied upon by the learned Counsel for the petitioner and this Court is of the opinion that they are not relevant and applicable to the factual profile of the present case. In the case of A.K. Kraipak and Ors. V/s. The Union of India and Ors. (supra) paragraphs 15 and 21 are relied on which are examined and it is found that they are not coming in the way of respondent No. 8, rather in all probabilities, they are counterproudctive of the petitioner. In paragraph 15 of the said report it is observed - "It is unfortunate that Naqishbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most appropriate person to be the selection board". Here in pursuance of the change in the legal status of the Institute, only Human Resources Development Department, is the Department which has to take administrative decisions so far as the selection aspect is concerned. Observation in paragraph 15 are totally irrelevant. Same is the position in case of paragraph 21 of the said report. It is not relevant and it is not material for adjudication in this case. No body can dispute the proposition that an Administrative Department appoints a Selection Committee of experts for the purpose of finding out better and talented persons for manning the important organisation. It is in the aid of selection of meritorious person. That is the question which is discussed in paragraph 21 of the said report which is not at all in dispute in the present case. Therefore, that decision is not useful to the petitioner whereas in the case of Bharat Singh and Ors. V/s. State of Haryana and Ors. (supra) paragraph 13 of the report has been relied upon by the learned Counsel for the petitioner. Therefore, that decision is not useful to the petitioner whereas in the case of Bharat Singh and Ors. V/s. State of Haryana and Ors. (supra) paragraph 13 of the report has been relied upon by the learned Counsel for the petitioner. The said paragraph is examined and it is found that it is totally irrelevant and unconcerned with the merit of the present case. I fail to comprehend as to why paragraph 13, as quoted hereinafter, is solicited and for what purpose? 13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and not facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC . In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. In this context it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit. 22. In the opinion of this Court, learned Counsel for the petitioner is unable to make any capital out of it. 23. Now, it will lead to the appreciation of the relevance and attractibility of the third decision relied upon by the learned Counsel for the petitioner which is the case of Union of India and Ors. V/s. M. Bhaskaran (supra). It is contended that paragraph 6 is material. This paragraph is threadbare considered and examined by this Court. It pertains to the interpretation and applicability of the provisions of Rule 3(1)(i) and (iii) of Railway Services (Conduct) Rules, 1966 on the facts of that case. It is not understood which particular law would be applicable to the facts of the present case. Therefore, the case law sought to be relied on in support of the petition is of no avail to the petitioner. 24. Upon true analogy of the facts and the relevant provisions of law and correct appraisal of the chronology of events emerging from the record of the present case, as well as, jurisprudential principles governing entertainment of the writ petition questioning non-selection of a person coupled with the factual matrix, this Court is of the clear opinion that the so called cry raised in this petition is nothing but an outburst of frustration of non-selection of the petitioner and the rightful decision of respondent No. 8 for the post in question. The pleas and claim made in the writ petition are without any substance. 25. Accordingly, this writ petition shall stand dismissed but without costs.