Holding

The Court held that the seniority order fixed in 2005 and consistently upheld thereafter could not be disturbed, and dismissed the petition.

Summary

Two cardiac surgeons (Dr. Akshya Bisoi and Dr. Ujjwal Chowdhury) employed at AIIMS filed a writ petition under Article 32 seeking a mandamus directing AIIMS to determine that they were senior to Dr. Shiv Kumar Choudhary, the fourth respondent, based on the 1997 selection policy which they argued gave them higher grades in the 2005 selection for Additional Professor. The petitioners alleged that the selection committee’s grading, which included expert opinions, should have placed them above the respondent, and invoked a Union Ministry directive under Section 25 of the AIIMS Act to fix seniority strictly per the 1997 policy. The Court noted that the selection and seniority order had been affirmed repeatedly by the AIIMS Governing Body from 2012 to 2016, and that the petitioners delayed seeking relief for over twelve years, invoking laches. The Court held that the 1997 policy allowed the final selection to be made on the basis of grades but did not make the experts’ opinions binding, and that disturbing the long‑settled seniority would be inequitable. Consequently, the petition was dismissed. The Court emphasized that the matter could not be reopened after such a delay and that the existing seniority order must stand.

Issues considered

The petitioners' right to seek judicial relief under Article 32 for an inter‑se seniority dispute after a twelve‑year delay.
Whether the 1997 AIIMS selection policy makes the grading of the Selection Committee and technical experts binding on the final seniority order.
The role and binding nature of technical experts' grades in the selection process.
Whether the alternative remedy of the Central Administrative Tribunal is available and efficacious.
Whether the Court can set aside the seniority order affirmed by the AIIMS Governing Body and the Union Ministry directive.

Legislation cited

All India Institute of Medical Sciences Act, 1956s. 25

Subjects

inter‑se seniorityAIIMS selection policyArticle 32lachesservice lawadministrative lawAll India Institute of Medical Sciences ActSection 25selection committeetechnical experts

Judgment

890 [2018]REPORTS
SUPREME COURT 1 S.C.R. 890 [2018] 1 S.C.R.

A DR. AKSHYA BISOI AND ANOTHER
v.
ALL INDIA INSTITUTE OF MEDICAL SCIENCES & OTHERS
(Writ Petition (Civil) No 1179 of 2017)
B FEBRUARY 06, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Service Law:
C Inter-se Seniority – Determination of – Sought by filing petition
u/Art. 32 of the Constitution – In respect of the selection to the post
of ‘Additional Professor’ made in September 2005 – On the basis
of recommendations of Standing Selection Committee – Held: The
Policy of 1997 indicates that the gradings given by all the members
of the Selection Committee and the technical experts are to be placed
D
before Chairman of the Selection Committee and final selection ‘may
be made’ on the basis of gradings given by the members and the
experts of the Committee – The Committee, in making final
recommendation in regard to the order of merit of the candidates,
had taken into consideration their performance, their records and
E the opinion of the experts – Therefore, the ranking assigned cannot
be regarded as being in breach of Policy of 1997 – It would be
iniquitous to unsettle the position of seniority over twelve years
after the petitioners and fourth respondent were selected as
Additional Professors – The delay on the part of the petitioners in
seeking recourse to legal remedies, must weigh against them – Delay/
F
Laches – Constitution of India – Art. 32.
The two petitioners (cardiac surgeons in All India Institute
of Medical Sciences) seeking a writ of Mandamus directing the
first respondent to determine their seniority in relation to the
fourth respondent kin terms of a binding Policy of 1997.
G According to the petitioners at the time of their (petitioners and
4 th respondent) selection as ‘Additional Professors’ Grades
allocated to petitioner No.1 were higher to respondent No.4 as
one of the Members/Expert Advisers had allocated higher grades
as compared to respondent No.4 and therefore, would rank senior
H to respondent No.4.
890
DR. AKSHYA BISOI AND ANOTHER v. A.I.I.M.S & OTHERS 891

Dismissing the Petition, the Court A
HELD : 1. Recruitment to the post of Additional Professor
was carried out in 2005, i.e. well over 12 years ago. The petitioners
have instituted these proceedings under Article 32 in November
2017 to question the order of ranking made by the Selection
Committee on 12 September 2005. There is no cogent B
explanation for this belated recourse to legal remedies. The
petitioners cannot legitimately explain the delay on their part
merely by contending that they were representing to the First
respondent to remedy their grievances. The petitioners may have
believed in good faith that the AIIMS administration would pay
heed to their grievances. They had a sympathetic ear of the Union C
Ministry of Health and Family Welfare. But twelve years is too
long a period, by any means, to not seek recourse to judicial
remedies. As the narration of facts would indicate, the Governing
Body had on 14 April 2012 decided to maintain the order of merit
in terms of which the Fourth respondent was ranked first, above D
the two petitioners. Even thereafter, a three member committee
was constituted by the Governing Body in October 2012 and a
decision was once again taken on 19 July 2013 to maintain the
order of seniority. This was reiterated on 12 May 2014 and 22
June 2016. The petitioners were thus aware of the consistent
position which was adopted by the First respondent. The delay E
on their part in seeking recourse to their legal remedies must
weigh against them. At this stage it would be manifestly unfair to
unsettle the inter se seniority between the three Professors in
the CTVS department by reopening the recommendation made
by the Selection Committee in 2005. [Para 17] [902-G-H; 903-A- F
C]
State of Uttaranchal v. Shiv Charan Singh Bhandari
(2013) 12 SCC 179 : [2013] 9 SCR 609 – relied on.
2. As per the 1997 Policy, the gradings allocated by the
members of the Selection Committee and the technical experts G
are to be placed before the Chairman of the Selection Committee
and the final selection of the candidates “may be made” on the
basis of the gradings/markings of the members of the committee
and the technical experts. The expression “may be made” . The
judgment of the Delhi High Court in Dr Dilip Kumar Parida v
AIIMS holds that the view of the experts who are co-opted in the H
892 SUPREME COURT REPORTS [2018] 1 S.C.R.

A selection process is only advisory and that the members of the
Standing Selection Committee of AIIMS are not bound by their
opinion. This position in the judgment of the Delhi High Court
should not be read to suggest that the experts who are co-opted
as part of the Selection Committee have no role and that the
other members have to decide on the selection, independently
B
of their views. Experts are co-opted in order to ensure that the
Selection Committee is broad-based; that the selection is
objective; and that the experience and knowledge of experts
drawn from outside provides a valuable input in the ultimate
decision. The fact that selection ‘may be made’ on the basis of
C the grading given by the members of the Selection Committee
and the technical experts suggests that the determination of merit
is not merely a mechanical totalling of grades allotted. The
Selection Committee has to act objectively. This undoubtedly
requires giving due credence to the view of the experts. But
while doing so, it must have due regard to all relevant aspects
D
bearing on the interest of the institution. The Selection
Committee has to assess the credentials of the candidates which
would include the service profile of the candidate. It is in this
sense that the Delhi High Court has to be construed to mean
that while the views of the experts co-opted to the Selection
E Committee constitute a valuable perspective and input, they
cannot be regarded as binding. The members of the Selection
Committee would have to consider the views of the experts and
to evaluate them together with all other relevant circumstances.
[Paras 20 and 21] [905-G-H; 907-A-C]
F 3. In the present case, while making its recommendations
for appointment to the post of Additional Professor, the Selection
Committee had borne in mind the performance of the candidates,
their records as well as the opinion of the technical experts. The
minutes of the meeting of 12 September 2005 indicate that the
views of the technical experts were considered. Hence, the
G ranking which has been assigned cannot be regarded as being in
breach of the policy decision of 1997. It would be iniquitous to
unsettle the position of seniority, over twelve years after the
petitioners and the Fourth respondent were selected as
Additional Professors. Even thereafter, when each of them has
H
DR. AKSHYA BISOI AND ANOTHER v. A.I.I.M.S & OTHERS 893

been promoted as a Professor, it is the Fourth respondent who A
has been ranked higher than the petitioners. [Para 22] [907-C-
G]
Case Law Reference
[2013] 9 SCR 609 relied on Para 18
B
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No. 1179 of 2017.
Under Article 32 of the Constitution of India.
K. K.Venugopal, AG, Vikas Singh, Mukul Rohatgi, P. S. Patwalia,
Sr. Advs, Nikhil Nayyar, T.V.S. Raghavendra Sreyas, N. Sai Vinod, C
Dhananjay Baijal, Ms. Smriti Shah, Divyanshu Rai, R. Balasubramanian,
Gaurav Sharma, Ms. Aarti Sharma, Snehasish Mukherjee, Gopal Shankar
Narayan, Apoorva Agarwala, Ms. Pooja Dhar, Mayank Sapra, Akshay
Amritanshu, G. S. Makker, Ms.Veera M., Shrutanjaya Bhardwaj, R. Bala,
Ankur Talwar, Aparajit Singh, Ms. Pooja Dhar, Advs for the appearing D
parties.
The Judgment of the Court was delivered by
DR. D. Y. CHANDRACHUD, J. 1. The jurisdiction of this Court
under Article 32 of the Constitution has been invoked by two cardiac
surgeons. They are attached as Professors to the Department of Cardio E
Thoracic and Vascular Surgery (CTVS) at the All India Institute of
Medical Sciences. Each of them, as indeed the Fourth respondent in
relation to whom they raise a dispute, has an enviable record of service
in AIIMS. Disputes in service are not a rarity, even among doctors. The
distinguished service of the contesting doctors in the present case renders
F
the task of the adjudicator unenviable. That one of them will rank senior
is no reflection of the merit of the others. Life is not always equitable in
assigning accolades.
2. The relief which the petitioners seek is a writ in the nature of
mandamus directing the First respondent to determine their seniority in
G
relation to the Fourth respondent in terms of a binding policy of 1997.
They seek a direction that since their selection on 12 September 2005 as
Additional Professors, they would rank senior to the Fourth respondent.
The petitioners challenge the legality of the office memoranda dated 20
April 2010, 14 July 2017 and 24 August 2017 issued by the First
respondent. H
894 SUPREME COURT REPORTS [2018] 1 S.C.R.

A 3. The first petitioner (Dr A K Bisoi), the second petitioner
(Dr U K Chowdhury) and the Fourth respondent (Dr Shiv K Choudhary)
were appointed by direct recruitment as Assistant Professors on 4 June
2003. On 1 July 2003, they were promoted as Associate Professors. On
23 September 2005, they were appointed by direct recruitment as
Additional Professors. On 1 July 2010, they were promoted as
B
Professors, a position which they now occupy. The seniormost will be
designated as Head of Department of CTVS.
4. The Attorney General for India has placed on the record a
tabular statement, reflecting the comparative position in the merit list
C and seniority, in each of the positions to which the petitioners and fourth
respondent were appointed or, as the case may be, promoted. For
convenience of reference, the statement is reproduced below:
Names Direct recruitment Promotion Direct Recruitment Promotion
as Assistant as as Additional as
Professor on Associate Professor on Professor
D 4.6.2003 Professor 23.9.2005 on
on 1.7.2010
1.7.2003

Merit Seniority Seniority Merit Seniority Seniority
List List
Dr Shiv K First First First First First First
E Choudhary
(Respondent
No. 4)

Dr U K Second Second Second Second Second Second
Chowdhury
(Petitioner
F No. 2)
Dr A K Bisoi Third Third Third Third Third Third
(Petitioner
No. 1)

The above statement would indicate that the Fourth respondent
has consistently been ranked senior to the petitioners as Assistant
G
Professor, Associate Professor, Additional Professor and Professor. The
appointment of all the three surgeons as Additional Professors was on
23 September 2005. For well over twelve years, the Fourth respondent
has been placed senior to the Petitioners.

H
DR. AKSHYA BISOI AND ANOTHER v. A.I.I.M.S & OTHERS 895
[DR. D.Y. CHANDRACHUD, J.]

5. On 25 April 2005, four posts of Additional Professor were A
advertised in the department of CTVS, which were to be filled up through
open selection. The shortlisted candidates were called for interview
before a Selection Committee on 12 September 2005. The Selection
Committee recorded the minutes of its decision in the following terms:
“ALL INDIA INSTITUTE OF MEDICAL SCIENCES B
SELECTION COMMITTEE MEETING HELD ON
12th SEPTEMBER 2005
Considering the performance of candidates and their records, and
also the opinion of the technical advisers, the Committee
recommends the following candidates for the post of Additional
Professor of CTVS in order of merit including the candidates on C
the waiting list specified separately :-
1. Dr. Shiv Kumar Choudhary
2. Dr Ujjwal Kumar Chowdhury
3. Dr.Akshya Kumar Bisoi
D
WAITING LIST
1. Three extra increments recommended for each one of the above
candidates.”
The Selection Committee consisted of seven persons. Among them
were two experts drawn from outside. The grades which were E
allocated by each of the members of the Selection Committee to the
contesting parties in the present case are tabulated below:
“Grades awarded by the Selection Committee for direct
recruitment to the Post of Additional Professor, CTVS on
12.9.2005 F
M em ber M e mb er M emb er Mem ber M e mb er Ex pert/ E xp e rt/
1 2 3 4 5 A dvi se r A dv ise r
1 2
D r S hiv K A+ A+ A+ A+ A+ A+ A
C ho ud hary
(Re s po nd en t
No. 4)
Dr U K A+ A+ A+ A+ A+ A+ A
C ho w dh ury G
(Pe titio ner
No. 2)
D r.Biso i A+ A+ A+ A+ A+ A+ A+

(Pe titio ner
N o .1
H
896 SUPREME COURT REPORTS [2018] 1 S.C.R.

A The above chart would indicate that all the seven members of the
Selection Committee, assigned an A+ grading to the First petitioner. Six
members of the Selection Committee assigned an A+ grading to the
Second petitioner and the Fourth respondent. One of the two experts
who had rated the first petitioner as A+, rated the second petitioner and
the Fourth respondent as A. It is on this basis that the petitioners
B
contend that the order of merit which was drawn up was erroneous and
that the First petitioner should have been placed at the top of the order
of merit instead and in place of the Fourth respondent.
6. According to the petitioners, in 1997, the First respondent
decided that in order to make the selection process transparent, it had
C been resolved that the final selection of candidates would be made on
the basis of the grading by the members of the Selection Committee.
The petitioners claim that if the policy of 1997 were followed the First
petitioner would have ranked higher than the Fourth respondent. Thus,
the petitioners claim that the First petitioner should rank senior to the
D Fourth respondent by virtue of the fact that in the grading given to the
rival candidates by the members of the Selection Committee in 2005, he
was allotted a higher grade than the Fourth respondent by one of the
seven members, the other members having allotted the same grading.
The petitioners have sought to buttress this submission by placing
reliance on a decision communicated on 14 October 2014 by the Union
E Ministry of Health and Family Welfare under Section 25 of the All India
Institute of Medical Sciences Act 1956 requiring the First respondent to
examine the issue of seniority, amongst the three professors in the CTVS
department “based on the recommendations of the Standing Selection
Committee meeting held on 12 September 2005” and to fix the seniority
F “strictly” in accordance with the policy decision of 1997.
7. Mr Vikas Singh, learned senior counsel urged that in terms of
the policy decision of 1997, it was necessary that the inter se seniority
of selected members of the faculty should be fixed purely on the basis of
merit; merit being determined in terms of the grades awarded by the
G members of the Selection Committee including the experts. The
submission is that the decision which was communicated by the Union
government in exercise of powers conferred by Section 25 of the AIIMS
Act was binding on the First respondent. Reliance was placed on the
provisions of Section 25 which read thus:

H
DR. AKSHYA BISOI AND ANOTHER v. A.I.I.M.S & OTHERS 897
[DR. D.Y. CHANDRACHUD, J.]

“25. Control by Central Government A
The Institute shall carry out such directions as may be issued to it
from time to time by the Central Government for the efficient
administration of this Act.”
The petitioners also submit that the grade sheets pertaining to the
2005 selection in the department of CTVS were put up to the B
Governing Body on 16 January 2012 for scrutiny. The Governing
Body observed thus:
“…. The representations were discussed at length and the GB
found merit in the claim of Dr. A.K. Bisoi as he was rated best
among three Additional Professors recruited to the post under C
direct recruitment with him in the year 2005….”
The petitioners have also relied upon a communication of the then
Director, Dr R C Deka, to the President of AIIMS on 27 June 2012
inter alia stating thus:
D
“…. I am forwarding his submission to the President for his
consideration as I believe that he has a claim as per the records
produced by him and the available records at AIIMS also suggested
him as the senior most among the three Additional Professors
selected at that time, if the grades given to him are considered on
merit as per Institute Body decision dated15.01.97……..” E
The Head of the CTVS Department demitted service on 31
December 2017. The senior most would assume charge as Head of
Department.
8. In pursuance of the order of this Court dated 11 December
F
2017, issuing notice, the learned Attorney General for India has appeared
on behalf of the First, Second and Third respondents with Mr R
Balasubramaniam. Mr Mukul Rohatgi and Mr P S Patwalia, learned
senior counsel have appeared on behalf of the Fourth respondent. A
counter affidavit has been filed on behalf of the First, Second and Fourth
respondents in these proceedings. Pleadings have been completed with G
a rejoinder as well.
9. A preliminary objection has been raised to the maintainability
of the Writ Petition on the ground that the petitioners have an efficacious
alternate remedy to raise a dispute of inter se seniority before the Central
H
898 SUPREME COURT REPORTS [2018] 1 S.C.R.

A Administrative Tribunal. Hence, it was urged that a petition under Article
32 of the Constitution should not be entertained. This submission has
been countered on behalf of the petitioners by Shri Vikas Singh, learned
senior counsel, who adverted to a decision of a Division Bench of the
Delhi High Court in Dr Dilip Kumar Paridav All India Institute of
Medical Sciences1.Learned senior counsel urged that the Delhi High
B
Court has held that “the role of the experts co-opted in the selection
process is merely advisory” and that the members of the Standing
Selection Committee are not bound by the opinion of the experts. In
view of this statement of law, the correctness of which has been placed
in issue, it has been urged that the remedy of approaching the Tribunal is
C not efficacious, the Tribunal being bound by the decision of the High
Court. Hence, it was urged that it would be appropriate for this Court to
consider the position in law and to exercise its jurisdiction under Article
32, especially having regard to the fact that the First respondent is an
institution of national importance. It was urged that a dispute in regard
to seniority ultimately affects the efficiency of personnel and hence it is
D
necessary for the court to resolve the question.
10. During the course of the hearing, affidavits have been filed on
behalf of the First, Second and Fourth respondents traversing the entire
dispute on merits. The learned Attorney General as well as the learned
Senior Counsel appearing for the contesting doctors have assisted this
E Court on the merits of the matter. Since the issue has been argued on
merits as well, we have in the considered exercise of our judgment
determined that it would be appropriate to resolve the matter here rather
than relegating the parties to a protracted litigation before the Tribunal
and the High Court. We have also borne in mind the submission of the
F petitioners that in view of the judgment of the Delhi High Court noted
above, it would be necessary for this Court to set down the position.
11. While analysing the grievance of the petitioners, a striking
aspect of the matter which has emerged before the Court is that the
fixation of the order of seniority as between the petitioners and the Fourth
G respondent, pursuant to their selection as Additional Professors on 23
September 2005 has been examined on several occasions by the
Governing Body of the First respondent. They include the following:
(i) At the 147thmeeting of the Governing Body on 14 April 2012,
it was resolved thus:
H 1
LPA 360 of 2004, decided on 9 January 2012
DR. AKSHYA BISOI AND ANOTHER v. A.I.I.M.S & OTHERS 899
[DR. D.Y. CHANDRACHUD, J.]

“The Governing Body considered the representation submitted A
by Dr A K Bisoi and Dr U K Choudhary. It also considered the
judgment of the Delhi High Court of 9th February 2012 in the case
filed by Dr Dilip Kumar Parida. After examining all aspects
including the Institute Body’s Resolution dated 15.1.1997, the
advice of the Director, the representation submitted by Dr A K
B
Bisoi and Dr U K Choudhary, the Governing Body decided that
inter seseniority of Dr Shiv Kumar Choudhary, Dr U K Choudhary
and Dr A K Bisoi would be maintained as had been recommended
by the Standing Committee in the year 2005.;
(ii) The First petitioner continued to represent his grievance. On 22
October 2012, the Governing Body in its 148th meeting resolved C
that a Committee consisting of (i) The Health Secretary; (ii)
Director, AIIMS; and (iii) Dr S P Agrawal would examine the
facts/records and place its report before it. Based on the report
of the Committee, the Governing Body resolved at its 149th meeting
held on 19 July 2013 thus: D
“It was accordingly decided not to make any changes nor to
redefine seniority of the 3 Professors which was decided by
then GB on the basis of the recommendations of SSC.”
(iii) On 12 May 2014, the Governing Body revisited the issue at its
151st meeting and resolved thus: E
“After discussion, the Governing Body reiterated its decision
taken in the 149th meeting of G.B. held on 19th July, 2013. It
was unanimously decided that, this matter need not be dis-
cussed again,” ;
(iv) Subsequently, the Union Health Minister directed AIIMS F
administration to once again bring the matter relating to the seniority
of the first petitioner before the ensuing meeting of the Governing
Body. Following this at the 153rd meeting of the General Body
which was held on 22 June 2016, the earlier decisions were noted
and the following decision was taken:
G
“The Governing Body considered the issues involved in the
seniority among Professors in the Department of CTVS. The
Governing Body noted the earlier decisions. It was decided
that the matter may be explained through a communication
by AIIMS to the Ministry and be placed before HFM cum
The President, AIIMS for his consideration.” H
900 SUPREME COURT REPORTS [2018] 1 S.C.R.

A Pursuant to the above decision, a communication was addressed
to the Ministry of Health and Family Welfare on 10 October 2016 stating
thus:
“The Standing Selection Committee is the final arbitrator and
interpreter of the Institute Body guidelines in the matter of
B selections. It implements the guidelines within the statutory
limitation taking into consideration not only the performance at
the time of interview but also overall assessment of the
candidates including the curriculum vitae submitted by the
candidates in the application form. The Standing Selection
Committee, in this case, has placed Prof. (Dr) Shiv Choudhary
C above Prof. (Dr.) A.K. Bisoi.”
12. The above narration indicates that since April 2012, the
consistent position which has been maintained by the First respondent is
in line with the order of merit which was recommended by the Selection
Committee by which the Fourth respondent was placed above the
D petitioners when they were selected for appointment as Additional
Professors.
13. On 14 October 2014, a communication was addressed to the
Director of the First respondent by the Union Ministry of Health and
Family Welfare, in exercise of its powers under Section 25 of the AIIMS
E Act, 1956. The directive was in the following terms:
“3.In view of above, the institute is directed under Section 25 of
AIIMS Act 1956 to examine the issue of fixation of seniority
amongst the three professors in the Department of CTVS, AIIMS,
New Delhi who were appointed as direct recruits to the post of
F Additional Professors in CTVS, AIIMS, New Delhi based on the
recommendations of the Standing Selection Committee meeting
held on 12.9.2005 and fix the seniority strictly in accordance with
the policy decision of Institute Body in 1997 in correct order.”
The above directive under Section 25 required the First respondent
G to examine the issue of seniority amongst the three professors in the
department of CTVS. The directive refers to the appointment of the
three professors based on the recommendations of the Standing Selection
Committee of 12 September 2005. Seniority was required to be
determined “strictly” in accordance with the policy decision of the institute
of 1997.
H
DR. AKSHYA BISOI AND ANOTHER v. A.I.I.M.S & OTHERS 901
[DR. D.Y. CHANDRACHUD, J.]

14. In compliance with the directive, the First respondent informed A
the Union government by a letter dated 18 February 2015 thus:
“This issue had been placed before the governing body first in its
meeting held on 16.1.2012 and as desired by the GB, the issue
was again placed before it on 14.4.201. It was decided by the GB
that the inter se seniority among Dr S K Choudhary, Dr U K B
Chowdhury and Dr A K Bisoi would be examined as had been
recommended by the Standing Selection Committee in the year
2005.
Further, the Governing Body in its meeting held on 22.10.2012
while considering action taken report on the recommendation of
C
previous GB meeting took place note of representations of Dr A
K Bisoi and decided that a committee consisting of Health
Secretary, Director AIIMS and Dr S P Agarwal would examine
the facts/records and place their report before the Governing Body.
Accordingly, the committee under the chairmanship of Sh P K
Pradhan, then Secretary, Health examined the issue but express D
their inability to comment on the recommendations on the Standing
Selection Committee, stating that the committee does not have
the mandate to review the decision of the Standing Selection
Committee as per the guidelines approved by the Institute Body
in its meeting held on 18.9.1997. The committee however, E
observed that the issue of seniority becomes relevant only for
becoming Head of the Department and therefore, they have
stressed the need to implement the decision of the Governing Body
in its meeting held on 16.1.2012 regarding rotation of headship.
The issue of rotating headship requires wider consideration.
The recommendation of the committee under the Health Secretary F
was placed before the Governing Body in its meeting held on
22.10.2012 where in it was decided neither to make any changes
nor to re-define seniority of the three professors which was decided
by the G.B. on the basis of recommendation on Standing Selection
Committee. G
In pursuance of the Section 25, of AIIMS Act, 1956 directives to
fix inter se seniority among Dr S K Choudhary, Dr Ujjwal Kumar
Choudhary and Dr A K Bisoi stands decided as per the decision
of the Governing Body dated 23.9.2005, 14.4.2012 and
22.10.2012.”
H
902 SUPREME COURT REPORTS [2018] 1 S.C.R.

A 15. In response to a further query of the Ministry of Health and
Family Welfare dated 31 March 2015, the First respondent clarified the
matter on 23 September 2015 in the following terms :
“The recommendations of the Selection Committee were
approved by the Governing Body in its meeting held on 23.9.2005
B and thereafter these three faculties were appointed as Additional
Professor. The seniority of direct recruit faculty is determined in
the order of merit in which they are recommended by the Selection
Committee. As per the recommendations of the Selection
Committee as stated above, Dr S K Choudhary is senior to Dr U
K Chowdhury who is senior to Dr A K Bisoi...
C
Regarding the other two queries, it is informed that Dr S K
Choudhary, Dr U K Chowdhury and Dr A K Bisoi were initially
appointed as Assistant Professor at the Institute. All these were
promoted as Associate Professor under Assessment Promotion
Scheme before they were considered for the position of Additional
D Professor under direct recruitment quota in 2005. The seniority
among these three faculties in the grades of Assistant Professor
and Associate Professor were in the same order as in the post of
Additional Professor i.e. Dr S K Choudhary is senior to Dr U K
Chowdhury who is senior to Dr A K Bisoi.”
E 16. The Union government had in terms of its directive dated 14
October 2014 required the First respondent to examine the issue of inter
se seniority in accordance with the policy decision of 1997. The directive
did not mandate that the First petitioner rank senior to the Fourth
respondent. After due examination of the matter, the Union government
F was informed that the order of selection recommended by the Selection
Committee in 2005 and approved by the General Body was maintained.
17. The Court is confronted in the present case with a situation in
which recruitment to the post of Additional Professor was carried out in
2005. That was well over 12 years ago. The petitioners have instituted
G these proceedings under Article 32 in November 2017 to question the
order of ranking made by the Selection Committee on 12 September
2005. There is no cogent explanation for this belated recourse to legal
remedies. The petitioners cannot legitimately explain the delay on their
part merely by contending that they were representing to the First
respondent to remedy their grievances. The petitioners may have believed
H
DR. AKSHYA BISOI AND ANOTHER v. A.I.I.M.S & OTHERS 903
[DR. D.Y. CHANDRACHUD, J.]

in good faith that the AIIMS administration would pay heed to their A
grievances. They had a sympathetic ear of the Union Ministry of Health
and Family Welfare. But twelve years is too long a period, by any means,
to not seek recourse to judicial remedies. As the narration of facts would
indicate, the Governing Body had on 14 April 2012 decided to maintain
the order of merit in terms of which the Fourth respondent was ranked
B
first, above the two petitioners. Even thereafter, a three member
committee was constituted by the Governing Body in October 2012 and
a decision was once again taken on 19 July 2013 to maintain the order of
seniority. This was reiterated on 12 May 2014 and 22 June 2016. The
petitioners were thus aware of the consistent position which was adopted
by the First respondent. The delay on their part in seeking recourse to C
their legal remedies must weigh against them. At this stage it would be
manifestly unfair to unsettle the inter se seniority between the three
Professors in the CTVS department by reopening the recommendation
made by the Selection Committee in 2005.
18. In holding that an unexpected delay on the part of the petitioners D
would disentitle them to relief, we place reliance on a judgment of this
Court in State of Uttaranchal v ShivCharan Singh Bhandari2 . The
learned Chief Justice, after adverting to the settled position of law in that
regard, observed thus:
“27. We are absolutely conscious that in the case at hand the E
seniority has not been disturbed in the promotional cadre and no
promotions may be unsettled..the respondents chose to sleep like
Rip Van Winkle and got up from their slumber at their own leisure,
for some reason which is fathomable to them only. But such
fathoming of reasons by oneself is not countenanced in law. Anyone
who sleeps over his right is bound to suffer.” (Id at page 185) F

“28. Remaining oblivious to the factum of delay and laches and
granting relief is contrary to all settled principles and even would
not remotely attract the concept of discretion. We may hasten to
add that the same may not be applicable in all circumstances where
certain categories of fundamental rights are infringed. But, a stale G
claim of getting promotional benefits definitely should not have
been entertained by the Tribunal and accepted by the High
Court.”(Id at page 186)

2
(2013) 12 SCC 179
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904 SUPREME COURT REPORTS [2018] 1 S.C.R.

A There has to be an element of repose and a stale claim cannot be
resuscitated.
19. The issue of making selections “transparent and more
participatory” at AIIMS was entrusted to a sub-committee formed for
that purpose in 1997. The suggestions of the sub-committee, together
B with administrative comments, were placed before ameeting of the
Institute body as Agenda Item 5 on 15 January 1997. The agenda note
inter alia contain the following proposal:
“In order to make the selections transparent and more participatory,
it is proposed that all the members of the Selection Committee as
C well as the technical experts should be asked to give confidentially
gradings/markings of each candidate in the following manner
1) A+
2) A
3) B+
4) B
D
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/
E markingsgiven 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
F 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 technical experts to
continue to sit in the Selection till a final decision is mad. In this
way, the confidentiality of the selected candidate will be maintained.
G The members 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.”
(emphasis supplied)
H
DR. AKSHYA BISOI AND ANOTHER v. A.I.I.M.S & OTHERS 905
[DR. D.Y. CHANDRACHUD, J.]

The suggestions of the sub-committee and the administrative A
comments were approved. Subsequently on 15 April 1997, it was found
that there was a disparity between the recommendations of the sub-
committee and the administrative comments. On 18 September 1997 a
modified set of administrative comments was brought before the Institute
body. The modified comments inter alia stated thus:
B
“(i)All the members of the Selection Committee as well as the
Technical Experts may be asked to give, confidentially, gradings/
markings to each candidate in the following manner :-
a) A+
b) A C

c) B+
d) B
e) C
D
(ii) The gradings given by all the members of the Selection
Committee and the Technical Experts, may be placed before
the Chairman, Selection Committee and final selection of
the candidates may be made on the basis of the gradings/
markings given by the Members of the Selection
Committee and the Technical Experts as mentioned above. E
In case, there is a ‘tie’ in the gradings in respect of any
candidate, the final decision for the selection in case of such
a candidate may rest with the Chairman of the Selection
Committee after discussions with other Members of the
Selection Committee.”(emphasis supplied)
F
The minutes of 18 September 1997 were approved in a meeting
held on 17 June 1998.
20. The above extract indicates that the gradings allocated by the
members of the Selection Committee and the technical experts are to be
placed before the Chairman of the Selection Committee and the final G
selection of the candidates “may be made” on the basis of the gradings/
markings of the members of the committee and the technical experts.
The expression “may be made” has been approved in place of “will be
made” as recorded earlier.

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906 SUPREME COURT REPORTS [2018] 1 S.C.R.

A 21. The judgment of the Delhi High Court in Dr Dilip Kumar
Paridav AIIMS (supra) holdsthat the view of the experts who are co-
opted in the selection process is only advisory and that the members of
the Standing Selection Committee of AIIMS are not bound by their
opinion:
B “21. AIIMS besides being a statutory body is a specialized body
and having provided for a constitution of a Standing Selection
Committee, we are in agreement with the contentions on behalf
of the respondent No. 5 that the role of the experts co-opted in
the section process is merely advisory and the members of the
Standing Selection Committee are not bound by the opinion of the
C experts and are entitled to evaluate the applicants for the various
posts independently of the same.
23. We may mention that the experts co-opted in the selection
process are intended to evaluate the academic aspects of the
candidates while on the other hand the Standing Selection
D Committee is concerned not only with the academic aspect but
also with the other parameters viz. of suitability, demeanour,
adaptability etc.”
The above statement of position in the judgment of the Delhi High
Court should not be read to suggest that the experts who are co-opted
E as part of the Selection Committee have no role and that the other
members have to decide on the selection, independently of their views.
Experts are co-opted in order to ensure that the Selection Committee is
broad-based; that the selection is objective; and that the experience and
knowledge of experts drawn from outside provides a valuable input in
F the ultimate decision. The policy adopted in 1997 indicates that the final
selection may be made on the basis of the grading/marking given by the
Members of the Selection Committee and the technical experts. Where
there is a tie, the decision rests with the Chairperson, after discussion
with other members of the Selection Committee. We cannot subscribe
to the contention of the petitioners that it is only a tie which can be
G resolved by the Chairperson and in all other cases, the Committee is
obliged to make its selection on a mathematical summation of grades.The
fact that selection ‘may be made’ (this expression being in substitution
of ‘will be made’) on the basis of the grading given by the members of
the Selection Committee and the technical experts suggests that the
H determination of merit is not merely a mechanical totalling of grades
DR. AKSHYA BISOI AND ANOTHER v. A.I.I.M.S & OTHERS 907
[DR. D.Y. CHANDRACHUD, J.]

allotted.The Selection Committee has to act objectively. This undoubtedly A
requires giving due credence to the view of the experts. But while doing
so, it must have due regard to all relevant aspects bearing on the interest
of the institution. The Selection Committee has to assess the credentials
of the candidates which would include the service profile of the candidate.
It is in this sense that the Delhi High Court has to be construed to mean
B
that while the views of the experts co-opted to the Selection Committee
constitute a valuable perspective and input, they cannot be regarded as
binding. The members of the Selection Committee would have to consider
the views of the expertsand to evaluate them together with all other
relevant circumstances.
22. In the present case, the record of the court indicates that C
while making its recommendations for appointment to the post of
Additional Professor, the Selection Committee had borne in mind the
performance of the candidates, their records as well as the opinion of
the technical experts. The minutes of the meeting of 12 September
2005 indicate that the views of the technical experts were considered. D
To re-evaluate what took place well over twelve years ago would neither
be feasible nor appropriate. The policy decision of 1997 indicates that
the gradings given by all the members of the Selection Committee and
the technical experts are to be placed before the Chairman of the Selection
Committee and the final selection “may be made” on the basis of the
gradings/markings given by the members of the Selection Committee E
and the technical experts. The Selection Committee which was
constituted in 2005 considered the issue of selection and inter se ranking
of the selected candidates. In making its final recommendation in regard
to their order of merit, upon appointment as Additional Professors, the
Selection Committee had due regard to relevant matters including the F
performance of the candidates, their records and the opinion of the
experts. Hence, the ranking which has been assigned cannot be regarded
as being in breach of the policy decision of 1997. It would be iniquitous
to unsettle the position of seniority, over twelve years after the petitioners
and the Fourth respondent were selected as Additional Professors. Even
thereafter, when each of them has been promoted as a Professor, it is G
the Fourth respondent who has been ranked higher than the petitioners.
23. For the above reasons, we have come to the conclusion that
the grant of relief would unsettle the inter se seniority between the
petitioners and the Fourth respondent well over twelve years since the
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908 SUPREME COURT REPORTS [2018] 1 S.C.R.

A recommendation of the Selection Committee for appointment as
Additional Professors. This cannot be done. Some expressions of opinion
in favour of the First petitioner in the departmental processes may have
engendered a sense of hope. But that cannot furnish a legal ground to
unsettle something that has held the field for long years. We close the
proceedings with the expectation that these distinguished doctors will
B
pursue their avocations at AIIMS without rancour. Our decision on
seniority is no reflection upon their distinguished service to a premier
national institution.
24. The Writ Petition shall accordingly stand dismissed. There
shall be no order as to costs.
C

Kalpana K. Tripathy Petition dismissed.

D

E

F

G

H