Mr. Justice S. Ravindra Bhat 1. This judgment will dispose of a review petition, filed by the appellant writ petitioner. It is directed against a judgment and order, dated 6-2-2006, dismissing an appeal, preferred against the judgment of a learned single judge. The single judge had negatived the petitioners’ challenge to his non-selection, and the selection and appointment of the fifth respondent, in WP 4107/2003. .2. The petitioner, as well as the fifth respondent, were candidates for selection to the post of Assistant Professor, Radiotherapy, All India Institute of Medical Sciences (‘AIIMS’). Interviews were held for the purpose, on 1-4- 2003; of the 35 called to attend the interview, 30 turned up. There is no dispute that of the nine members of the Selection Committee constituted for the purpose, only six attended the process and held interview. Three experts participated; two of them were external experts, (i.e Dr. D.P. Agarwal, HOD Radiptherapy, Sawai Mansingh Medical College, Jaipur, and Prof. R.K. Vyas, HOD, Radiotherapy, Gujarat Cancer Research Institute, Ahmedabad. The third, Prof. Rath, was HOD, Radiotherapy, AIIMS. The selection committee recommended the name of the fourth respondent, and placed the fifth respondent, first in the waiting list, and the appellant as second in the waiting list. This was ratified by the Governing Body (of AIIMS) in its meeting held on 4-6-2003. The petitioner preferred writ proceedings, challenging the selection and his placement below the fourth and fifth respondent, inter alia, contending that those candidates had been ranked ‘C’ (Poor) and thus inferior to the petitioner’s A+ (Excellent) by the experts. Thus, their ranking above him was alleged to be tainted by arbitrariness, as the AIIMS could not have ignored the experts ranking. 3. The learned single judge in his judgment found that although the subject experts ( in the field of Radiotherapy) had graded the petitioner higher than the fourth and fifth respondent, the members of the Selection Committee had graded the fourth and fifth respondent above the petitioner. It was further held that after conclusion of interviews, members of the standing selection committee had before them individual grades awarded to the candidates, based on which the Select list was prepared whereby the fourth respondent was placed at Sl.No 2; fifth respondent, at Sl. No. 4 and the petitioner, at Sl. No. 5. It was further held that after conclusion of interviews, members of the standing selection committee had before them individual grades awarded to the candidates, based on which the Select list was prepared whereby the fourth respondent was placed at Sl.No 2; fifth respondent, at Sl. No. 4 and the petitioner, at Sl. No. 5. The single judge found that members of the Selection Committee had graded the fourth respondent above the petitioner, and the fifth respondent: ‘virtually at par with the petitioner, save and except one member, Chairman of the standing selection committee who graded respondent No. 5 at ‘A’ and the petitioner at ‘B+’. This grading got reversed when one looks to the gradings awarded by the subject experts.’ In an earlier part of the judgment, the single judge held that: ‘For the purposes of effecting appointments in question, the institute had constituted a standing selection committee in terms of Section 10(5) of the Act read with Regulation 12. As per Regulation 10, the standing selection committee had to consist of Chairman, Vice Chairman and not more than seven members of the Institute. The said 7 members had to be from amongst members of the Institute. Members of the Institute were the persons listed in Section 4 of the Act. Selection Committee consisted of (1) Dr. S.P. Agarwal, (2) Dr. P. Venugopal, (3) Dr. Rajendra Tandon, (4) Dr. (Mrs) Y.V. Deshpandey, (5) Dr. H.S. Shukla, (6) Dr. P.K. Dave, (7) Professor Deepak Nayyar, (8) Dr. Abraham Thomas and (9) Shri Suresh Pachouri (MP)’’ 4. The single judge held that although subject experts, who were not members of the Selection Committee, had graded the petitioner better than the fourth and fifth respondent, the process of consultation, and selection was such that all factors were considered, and that the Governing Body was guided by the unanimous opinion of the Selection Committee, which recommended the rankings. In arriving at this conclusion, the single judge did not discern any infirmity in the selection process or illegality, by AIIMS as the experts’ gradings were only one relevant factor to be considered by the selection committee, and subsequently, the Governing Body. 5. The Division Bench confirmed the learned single judge’s findings. In arriving at this conclusion, the single judge did not discern any infirmity in the selection process or illegality, by AIIMS as the experts’ gradings were only one relevant factor to be considered by the selection committee, and subsequently, the Governing Body. 5. The Division Bench confirmed the learned single judge’s findings. It held that though the inclusion of the subject experts grading in the selection process was desirable, having regard to the expertise of such individuals, and the age of specialization, yet since the process culminating in appointment involved selection by a committee constituted for the purpose, of which such experts were admittedly not members, and further that the Governing Body (as also the Selection Committee itself) had the benefit of such expert’s gradings. It was therefore concluded that there was no arbitrariness or infirmity in the process of appointment. 6. According to the petitioner, the judgment requires to be reviewed because even though it adverts to the guidelines framed on 15-3-1997, it does not take those guidelines into consideration. The guidelines, argues the petitioner, have the effect of obliging the AIIMS and each Selection Committee to include the subject experts’ evaluation in selection processes, and not merely accord a consultative role to them. It is urged by the review petitioner that though the circular was sought to be brought on record during the appeal, the application filed in that regard was not entertained; yet the court permitted the appellant to seek reliance on the record of AIIMS at the stage of final hearing (of the appeal). 7. It was urged by learned counsel for the review petitioner that the judgment discloses an apparent error on the record, inasmuch as though the court was alive to the circular ‘as it was part of the record, and had also been shown during the proceeding, there was no discussion on that aspect. Counsel emphasized, by pointing out from the judgment, that the court noticed the petitioner’s contention so far it was based on the guidelines; yet the issue went unanswered in the judgment. 8. It was urged that the fundamental assumption which underlies the judgment ‘under review is that the statute debars consideration of expert’s evaluation, which is plainly erroneous. The petitioner contends that there is no bar for consideration of expert evaluation in selection processes; at best the statute and regulations are silent. 8. It was urged that the fundamental assumption which underlies the judgment ‘under review is that the statute debars consideration of expert’s evaluation, which is plainly erroneous. The petitioner contends that there is no bar for consideration of expert evaluation in selection processes; at best the statute and regulations are silent. However, the guidelines, effective from 15- 3-1997 fill in a gap, in that the regulations and provisions of the Act do not stipulate that experts should be consulted; neither do they say that they cannot be consulted. In this situation, the guidelines compel inclusion of expert evaluation, from the date of their formulation. 9. The Respondent No. 5 resists the petition, and urges that no ground for review of the judgment has been made out. According to this respondent, a conjoint reading of the Act, Rules and Regulations can therefore lead to only one interpretation that the role of the experts is only recommendatory and not binding in a selection process. Thus, in the event the Standing Selection Committee accepts the opinion expressed to it by the experts, such opinion of the experts would become effective as incorporated in the recommendation of the Selection Committee. Likewise, in the event the Standing Selection Committee disagrees with the opinion expressed to it by the experts, the recommendation of the Selection Committee would prevail and the opinion of the experts must be treated as subordinate thereto. .10. It is argued that there is no allegation in the present proceeding that the Standing Selection Committee ignored the opinion of the experts. On the contrary, the Standing Selection Committee recommendations were made taking into account the opinion of experts. As to what weight should be attached to the opinion of the experts is the prerogative of the Standing Selection Committee to decide. In the absence of any allegation of malafide against the members of the Standing Selection Committee, their decision in this regard must be treated as final. This issue cannot be subject matter of judicial review. Since in accordance with the relevant Act and Rules, the decision of the Selection Committee and further approved by the governing body is final, the same ought not to be disturbed. 11. This issue cannot be subject matter of judicial review. Since in accordance with the relevant Act and Rules, the decision of the Selection Committee and further approved by the governing body is final, the same ought not to be disturbed. 11. The fifth respondent, through its senior counsel further argued that the Minutes of the meeting of the AIIMS body dated 15.01.1997 relied upon by the review petitioner equates the experts with the Standing Committee, something ex facie contrary to the Recruitment Rules of 1981 as well as the scheme of the Act and Regulations. The Rules clearly mandate that the experts shall ‘assist’ the Standing Selection Committee and no more. Any decision purporting to equate the two bodies would violate the Rules and would hence be illegal and liable to be ignored. The decision of the Institute body is evidently ultra vires the parent Act and Rules. .12. It is apparent from the preceding discussion that the main ground on which the petitioner ‘appellant seeks review of the judgment is non- consideration of the AIIMS resolution, approved by its General Body, on 15-3- 1997. The recommendations, placed before the AIIMS, and approved, are extracted below for facility of reference: ‘TO CONSIDER THE SUGGESTIONS OF THE SUB-COMMITTEE FOR MAKING SELECTIONS TRANSPARENT AND MORE PARTICIPATORY AT THE A.I.I.MS. NEW DELHI. - - - The President ‘ AIIMS in the meeting of the Institute body held on 21st August, 1996 while considering the action taken on the minutes of the Institute body meeting held on 28.12.1995, informed that a group had been constituted with the following members to come up within 15 days with suggestions for making selections transparent and more participatory :- i) Dr. L.K. Bhutani, Director, AIIMS ii) Dr. Narendra Behari, DGHS iii) Shri Vijay Singh, JS (FA) iv) Smt. Sunila Basant , JS (SB) The sub-committee has submitted its recommendations to the president, AIIMS and the Minister of State for Health and Family Welfare/ President, AIIMS has approved the same as conveyed No. 16020/66/96-ME (PG) dated the 28th October, 1996. Copy of the letter and the recommendations are at Annexure ‘I While submitting the recommendations. It was noted by the Committee that the governing body is the appointing there is a Standing Selection Committee for making selections. Copy of the letter and the recommendations are at Annexure ‘I While submitting the recommendations. It was noted by the Committee that the governing body is the appointing there is a Standing Selection Committee for making selections. The services of outside experts are also taken while making selections and the recommendations of the standing Selection committee are advisory in nature. Sub ‘ committee has recommended as under :- 1. As per the present practice, only the experts give their gradings/ markings. Perhaps the members of the Selection Committee could also give markings/gradings. 2. The technical experts who are asked to leave after giving the gradings/markings before the final selection is made, should continue to remain till the final selections process is over. 3. To make selections more transparent, the gradings/markings before the final selection is made, should be kept as records which could be scrutinized by the Governing body, in case of need. 4. In case of appeals, the Governing body should scrutinize, the appeals as to whether they should be entertained. If any appeal/representation has a reasonable basis, the same should be referred back to the experts assisting the committee during reconsideration, should not be the same who participated in the original selection. 5, The appellant should invariably be given an opportunity of personal hearing by the selection committee. In order to make the selections transparent and more participatory, it is proposed that all the members of the selection committee as well as the technical experts should be asked to give confidentially gradings/ markings of each candidates in the following manner. 1) A+ 2) A 3) B+ 4) B 5) C The gradings given by all the members of the Selection committee and technical experts should be placed before the chairman of the Selection Committee and final selection of the candidate will be made on the basis of gradings/markings given by the members of the selection committee and the technical experts as mentioned above. In case, there is a tie in the gradings in respect of any candidate, the final decision for the selection of the candidate, should rest with the Chairman of the Selection Committee after discussion with other members of the selection committee. If the above method is applied for making the final selection of the candidates, then there is no need for the final decision is made. If the above method is applied for making the final selection of the candidates, then there is no need for the final decision is made. In this way, the confidentiality of the selection committee and the technical experts will specifically be asked to give the gradings in respect of each and every candidate as mentioned above. The same procedure should be applied in case of candidates who are appearing under the Assessment promotion scheme. The recommendations of the sub committee as well as the above procedure is placed before the Institute body for consideration. -- -- --’ 13. The Minutes of the General Body of AIIMS, approving the above recommendations, on 15-1-1997, reads as follows: ‘MINUTES OF THE MEETING OF THE INSTITUTE GENERAL BODY HELD ON WEDNESDAY THE 15.01.1997 AT 11. A.M. IN THE BOARD ROOM OF ALL INDIA INSTITUTE OF MEDICAL SCIENCES NEW DELHI. The following attended the meeting. xxxx xxxxxx xxxxxxxx xxxxxxx IB/5 : To consider the suggestions of the sub-committee for making selections transparent and more participatory at the AIIMS New Delhi. Approved.’ .14. This court, after issuing notice, had required the AIIMS to indicate whether the above resolution, dated 15-1-1997, had been followed in all other selection processes. The AIIMS, filed an affidavit, enclosing a letter. The same are extracted below: ‘AFFIDAVIT BY AIIMS I, Dr. P. Venugopal, Director, AIIMS, Ansari Nagar, New Delhi ‘ 110 029, do hereby state on solemn affirmation as under :- 1. That vide order dated 12.01.2007 this Hon’ble Court was pleased to direct the answering respondent to file reply to the Review Petition, and also indicate the decision taken in the meeting of the Institute body of the AIIMS on 15.01.1997. 2. That the present review as filed is not maintainable and is liable to be dismissed as the same is out side the scope of review. That it is also submitted that the appellant under the grab of this review petition is attempting to re-open the entire case and get the appeal re-heard. That the appellant has not brought out any fact which deserves consideration of this review petition. 3. That however without prejudice to the above it is also submitted that on 15.01.1997 two items being IB -5 and IB 6 (e) were taken up for consideration and certain decision were taken. The true copy if the agenda item NO. That the appellant has not brought out any fact which deserves consideration of this review petition. 3. That however without prejudice to the above it is also submitted that on 15.01.1997 two items being IB -5 and IB 6 (e) were taken up for consideration and certain decision were taken. The true copy if the agenda item NO. IB item No.5: 5 is annexed as Annexure RP-1/1. That the true copy of the agenda item No.IB-6(e) is annexed as Annexure RP-1/2. 4. That the Institute body of the AIIMS took decisions on 15.01.1007 and the true copy of the decision of the Institute body is annexed as Annexure RP- 1/3. 5. That the decision dated 15.01.1997 taken by the Institute Body of the AIIMS is being followed in all selections made for faculty posts since then. The copy of the letter dated 28.02.2007 indicating the above fact is annexed as Annexure RP-1/4. 6. That however the answering respondent has no objection or reservation to the rectification of the typographical errors on the basis of the evidence on record, based on rules and guidelines. The copy of the written submissions filed by the answering respondent at the time of hearing of the appeal is also annexed as Annexure RP-1/5. ` It is accordingly prayed that there is no merit in the Review petition and the same deserves to be dismissed. It is accordingly prayed. The letter referred to in the above affidavit reads as follows: ‘Annexure RP-1/1 Annexure RP ‘ ALL INDIA INSTITUTE OF MEDICAL SCIENCES (FACULTY CELL) No.F.11-1/2003- Estt. I Dated : 28 Feb. 2007 Ref : Review Petition No. 226/06 in LPA No.360/06 ‘ dr. Dalip Kr. Parida Vs. AIIMS and Ors. I am directed to refer to the letter dated 22.01.2007 under reference and to state that the decision of the institute Body taken in its meeting held on 15.01.1997 is being followed in all selections made for faculty posts since then. Sd/- (B.S. Sharma) Senior Admn. Officer. Sh. Mukul Gupta Standing Legal Counsel, AIIMS’ 15. The preceding discussion reveals that the judgment of this court, as well as that of the single judge were based on the reasoning that the Act, Rules and Regulations did not cast any duty upon the AIIMS to consider or give weightage’at least to members of the Selection Committee- to recommendations of the subject experts. The preceding discussion reveals that the judgment of this court, as well as that of the single judge were based on the reasoning that the Act, Rules and Regulations did not cast any duty upon the AIIMS to consider or give weightage’at least to members of the Selection Committee- to recommendations of the subject experts. This was premised upon the stand of AIIMS. The petitioner, undoubtedly had sought to place on record the recommendations, which were approved by the AIIMS Body, on 15th January 1997; the application was rejected, though the court permitted reliance to be placed on the files during the hearing. At the stage of hearing, the petitioner and the respondent apparently did make submissions on their applicability ‘as is evident from a reference to it, in the judgment, in the following manner: ‘20. Counsel submitted that the guidelines formulated for the role of experts all pointed out their role as advisers. He relied upon Para B of the Guidelines to say that the experts are to assess (sic assist) the Selection Committee in selecting the most suitable candidates and their evaluation therefrom cannot extend beyond that.’ 16. The findings of the single judge, as well as the judgment under review finds articulation in the following observations, of the Division Bench: ‘ the role of the experts is purely advisory and they do not figure either under the Act or any rule as members entitled to participate in the selection process. If their views are different, that would at best constitute a factor to be considered by the Selection Committee but in the scheme of the Act and Rules, such views of the experts cannot acquire primacy. In any case, it cannot be considered binding on the Selection Committee unlike the situation where the recommendations of the Selection Committee are binding..’ .17. The entire discussion and findings were based on analysis of the statutory provisions, which no doubt envision setting up of selection committees, and action by the Governing Body (towards appointment). Yet, there is nothing in the Act, Rules or Regulations brought to the notice of the Court, which could have prevented the AIIMS itself from framing guidelines, including the experts’ recommendations as part of the Selection process, and giving their evaluation due weightage. Yet, there is nothing in the Act, Rules or Regulations brought to the notice of the Court, which could have prevented the AIIMS itself from framing guidelines, including the experts’ recommendations as part of the Selection process, and giving their evaluation due weightage. That this was recommended, and done, by the highest body, i.e the Governing Body, in its meeting of 15-1-1997, is no longer in dispute. The relevant part of the guideline and recommendation ‘ accepted by AIIMS- reads as follows: ‘The gradings given by all the members of the Selection committee and technical experts should be placed before the .chairman of the Selection Committee and final selection of the candidate will be made on the basis of gradings/markings given by the members of the selection committee and the technical experts as mentioned above. In case, there is a tie in the gradings in respect of any candidate, the final decision for the selection of the candidate, should rest with the Chairman of the Selection Committee after discussion with other memberst of the selection committee.’ AIIMS, in the affidavit of its director, filed in these review proceedings, has also stated that: ‘5. That the decision dated 15.01.1997 taken by the Institute Body of the AIIMS is being followed in all selections made for faculty posts since then.’ 18. Courts have frequently held that executive instructions can be framed in areas where the statute is silent. In Union of India v. Rakesh Kumar, (2001) 4 SCC 309 , it was held thus: ‘there cannot be any doubt that the Government cannot amend or substitute statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules by issuing instructions not inconsistent with the rules. The Government also can confer certain benefits on its employees by an administrative order.’ In this case, there is no prohibition in any statutory norm from giving weightage to the evaluation by experts, in selection processes. A committee of AIIMS itself had recommended this action; the highest body of the Institute adopted the recommendations. The stand of Respondent No.1 to 3 at the stage of Writ Petition as well as in the appeal was undoubtedly that gradings by the experts were not binding on the Selection Committee and that the technical experts were called upon by the Director to assist such Committees. The stand of Respondent No.1 to 3 at the stage of Writ Petition as well as in the appeal was undoubtedly that gradings by the experts were not binding on the Selection Committee and that the technical experts were called upon by the Director to assist such Committees. The said Respondent No. 1 to 3 are opposing the review petition; yet in the affidavit filed in February, 2007, it is indicated that the decision taken by institute body on 15.01.1997 is being followed in all selections made for faculty posts since then. The stand taken earlier before the single judge and the Division Bench was therefore, unfortunate, to say the least. AIIMS could have fairly stated the existence of these guidelines and the fact that they were followed in selections made after 15.01.1997. The other aspect which would have to be examined is that having followed the guidelines of 15-1-1997 in previous selections, AIIMS appears to have departed from it in relation to the present selection. This has to be appropriately explained, and its effect, considered. .19. When courts are confronted with facts, which reveal that their decisions require a second look, in the interests of justice, they unhesitatingly invoke review powers. In Keshav Mills ‘vs- CIT AIR 1965 SC 1636 , the Supreme Court held that: ‘This is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified.’ In a later decision, S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595,the duty of the court to cure injustice, whenever facts necessitating that are brought to the notice of the court, was emphasized in the following evocative manner: ‘Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in .Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in .Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court.’ 20. In the conspectus of the facts, and having regard to the stand of AIIMS, as well as the recommendations of the Committee, which were accepted by the Governing Body on 15-1-1997, the review petitioners have been able to establish sufficient cause for review of the judgment of this court. We are of opinion that interests of justice require that the appeal should be heard afresh, and considered in the light of the Governing Body’s resolution dated 15- 1-1997, in respect of the decision to accept recommendations concerning weightage to expert evaluation in selection processes, in AIIMS. 21. For the above reasons, the review petition is entitled to succeed; it is allowed. This Court’s judgment dated 06.02.2006 is hereby recalled. The appeal is directed to be placed before the regular Bench, as per roster, subject to the learned Chief Justice’s directions on 12.02.2009, for disposal on merits. In the circumstances, there shall be no order as to costs. CM Nos. 12281/2008, 8823/2006 In view of the disposal of the review petition, no further orders are required to be passed in these applications and the same are disposed of accordingly.