Supreme Court of India
K. SHEKARversusV. INDIRAMMA AND ORS.
- Citation
- 2002 INSC 107
- Decided
- 27 February 2002
- Disposal
- Appeal(s) allowed
- Bench
- S RAJENDRA BABU
Holding
A selection committee cannot appoint a candidate to an unadvertised lower post, and a corrigendum cannot retrospectively convert a temporary appointment into a permanent one without re‑advertising, as such actions breach Articles 14 and 16.
Summary
The case concerned the appointment of K. Shekar as Lecturer and later Assistant Professor at NIMHANS after an initial temporary appointment in the ICMR Centre. The selection committee appointed him to a lower post that had not been advertised, and a subsequent corrigendum converted the temporary post into a permanent one without re‑advertising. The respondent challenged the validity of these actions, arguing violation of Articles 14 and 16 of the Constitution and the recruitment rules of NIMHANS. The Supreme Court held that the selection committee could not dispense with the requirement of advertisement and that a corrigendum could not retrospectively alter the nature of a post, as doing so would be arbitrary and unconstitutional. The Court affirmed the High Court’s decision setting aside the appointment, modifying it only to allow the appellant’s experience to be considered in any future legitimate recruitment, and dismissed the appeals.
Issues considered
- The validity of appointing a candidate to a lower post that was not advertised under the terms of the original advertisement.
- Whether a corrigendum can convert a temporary post into a permanent one without a fresh advertisement.
- Whether the actions of NIMHANS violated Articles 14 and 16 of the Constitution.
- Whether the respondent had locus standi to challenge the appointment.
Subjects
service lawappointmentselection committeeArticles 14 and 16recruitment rulesNIMHANSICMRtemporary postpermanent postcorrigendumjudicial review
Judgment
A K. SHEKAR
v.
V. INDIRAMMA AND ORS.
FEBRUARY 27, 2002
B [S. RAJENDRA BABU AND RUMA PAL, JJ.]
Service Law:
Appointment-Advertisement issued for the post ofAssistant Professor-
C Indian Council of Medical Research Centre in National Institute of Mental
Health and Neuro Sciences-Selection Committee recommended appointment
to the post of Lecturer on temporary basis-Corrigendum making provisions
to c~ange the nature of post to permanent and enabling the reversion of the
appointed candidate-Appointment challenged-High Court set aside the
D appointment-On appeal Held: Selection Commitee 's recomm~ndation for a
lower post against an unadvertised post based on power to relax the eligibility
criteria-Amounts to violation of Articles 14 and 16 of the Constitution of 'I""
India since the power cannot be exercised to do away with the criteria
altogether-Thus, the High Court was right setting aside the appointment of
the candidate for the post of Lecturer-Constitution of India. Articles 14 and
E 16.
In 1984, Indian Council of Medical Research (ICMR) set up its centres
in major institutions and medical colleges for developing advance research.
One such Centre was set up at National Institute of Mental Health and Neuro.
Sciences (NIMHANS). In September 1986, NIMHANS issued an
F advertisement to fill up the post of Assistant Professor of Psychiatric Social
Work and others in the ICMR Centre for a period of 3 years, with a
stipulation that some posts were likely to be made permanent after 3 years.
It was also stipulated that if a suitable candidate is not found, the Selection
Commitee could recommend a candidate for a lower post. Selection
G Committee did not appoint appellant as Assistant Professor but appointed
him as a Lecturer in Psychiatric Social Work. In December 1986, another
advertisement was issued for appointment of Lecturer in the ICMR Centre
at NIMHANS. The post was not filled up as it was reserved for a Scheduled
Caste and no SC candidate was found suitable.
In the meanwhile, ICMR Centre Head at NIMHANS informed the
H 86
K. SHEKAR v. V. INDIRAMMA 87
·Director NIMHANS that an agreement existed between ICMR and A
NIMHANS to absorb the faculty posts; and it would be appropriate to modify
the appointment orders issued earlier. It was agreed by NIMHANS and
accordingly Corrigendum to the order of appointment was issued.
Consequently, the post of Lecturer was made permanent on completion of
tenure appointment in the Centre and the appellant-appointee was allowed
to revert back to the services at NIMHANS with the benefit that the services B
rendered at ICMR Centre would be counted for the purpose of seniority in
NIMHANS.
In November, 1989 consequent upon approval by the Govt. of Faculty
•
.... Improvement Programme and redesignation of posts, the post of the appellant
was redesignated. as Assistant Professor on 1.10.1986 with NIMHANS
c
although appellant continued to serve in the ICMR Centre.
In June 1989, another advertisement was issued by NIMHANS for filling
up the posts of Assistant Professor and Lecturer in Psychiatric Social Work.
ICMR Centre at NIMHANS wound up and appellant was appointed as D
Assistant Professor (Psychiatric Social Work) at NIMHANS in 1990.
w Respondent No. 1 filed Writ Petition challenging the appointment of appellant
as Assistant Professor in NIMHANS. Single Judge held the appointment of
' the appellant as Lecturer invalid as the said post has not been advertised and
that Selection Committee was not entitled to either create a new post which
had not been advertised or to consider an ineligible candidates for the post E
advertised. On appeals by NIMHANS and the appellant, Division Bench
upheld the finding of Single Judge. Hence these appeals.
It was contended for the appellant and NIMHANS that Respondent No.
I did not have locus standi to challenge the appointment of appellant as
F
Lecturer and that Respondent No. I had not challenged the appointment but
corrigendum to the appointment order; and that the matter should be
considered from an equitable point of view as his service, since his appointment
in 1986, would be nulified if his appointment was set aside.
On behalf of Respondent No. I, it was contended that the process of G
appointment of appellant as Assistant Professor was vitiated by fraud and
bias starting with his irregular initial appointment in 1986 and culminating
with his r~ruitment by absorption; and that the Recruitment Rules could
not be overridden by any agreement with ICMR.
Disposing of the appeals, the Court H
88 SUPREME COURT REPORTS . [2002] 2 S.C.R.
A HELD: 1. National Institute of Mental Health and Neuro Sciences
(NIMHANS) is an institution of repute and it is true that generally speaking
courts have been reluctant to interfere with the running of educational
i-.istituti!)ns. But there can be "no islands of insubordination to the rule oflaw".
The actions of educational institutions, even though highly reputed, are not
B immune from judicial scrutiny. Indeed to preserve the high reputation, there
is a greater need to avoid even the semblance of arbitrariness or extraneous
consideration colouring the Institution's actions. (95-G-H; 96-A]
B.R KapoorandAnr. v. Union ofIndia and Ors., [1989] 3 SCC 387, relied
on.
C· 2.1. In the instant case, there can be no doubt that the appellant's
appointment as Lecturer in 1986 was not in terms of the advertisement
pursuant to which he had applied. Before any appointment could be made to
the post of Lecturer, the post should have been advertised together with the
eligibility criteria in respect thereof. The submission of NIMHANS was that
since the post of Lecturer was lower than an Assistant Professor's, it was not
D necessary to be advertised. Accepting this would amount to violation of
Articles 14 and 16.. The absence of an advertisement necessarily .deprived
persons who could have applied for the post, of the opportunity of applying
for the post. The clause in the advertisement which enabled the Selection
Committee to recommend a candidate for a lower post if the candidate was
E not found suitable for the post applied for, did not give NIMHANS the power
to appoint the recommended candidates against an unadvertised post
(96-D-E-F)
2.2. The said clause, far from allowing NIMHANS the power to dispense
with the< advertisement
,
of any lower post as a precondition to appointment,
F indicates that only eligible persons could be considered for selection. Once
the barrier of eligibility was crossed, the Selection Committee could consider
the suitability of the candidate for the post advertised. It follows that the
appellant should not have been called for interview at all. His application
clearly showed that he did not fulfil the requisite eligibility criteria. The power
of the Selection Committee to relax the eligibility criteria cannot be read as
G including th-e power to do away with the criteria altogether. (96-G; 97-A)
3.1. The post which was advertised was a temporary tenure post and
yet by virtue of the Corrigendum, it was made permanent When the post
itself was made permanent from its very inception by the corrigendum issued
several months later, the post should have been re-advertised so as to give·
H fair notice to all prospective candidates regarding the nature of the vacancy
K. SHEKAR v. V. INDIRAMMA [RUMA PAL, J.] 89
,
to be filled. It was not open to NIMHANS to retrospectively and subsequent A
'f to the appointment change the nature of post advertised by issuing the
Corrigendum. [97-B-C-D)
3.2. The Corrigendum proceeded on a mis-interpretation of the terms
and conditions under which the Centre was set up by the ICMR. There was
no obligation on the part of NIMHANS by reason of any 'agreement' with B
ICMR to absorb any employee of the Centre. [97-E)
3.3. The Corrigendum in so far as it provided for the 'reversion' of
persons working at the Centre to NIMHANS certainly could not operate to
..(
revert back the appellant The Cadre and Requirement Rules of NIMHANS
provide that appointments to the posts of Assistant Professor and Lecturer
C,
are to be made by direct recruitment. There was a distinction between
appointment as Lecturer at the ICMR Centre and appointment to the post
of a Lecturer in NIMHANS. That is the reason why the appellant applied
again pursuant to the advertisement for appointment as Lecturer in
NIMHANS, although he had already been issued letter of appointment as D
--- ...
Lecturer in the ICMR Centre. Therefore, he could not, in the circumstances,
be reverted back to NIMHANS. [97-F-G)
4. The decision of the High Court is affirmed, but modified to the extent
that the actual experience gained by the appellant by virtue of his appointment
as Assistant Professor may be taken into account if he applies pursuant to E
any future advertisement that may be issued by NIMHANS for the post of
l Assistant Professor in the Department of Psychiatric Social Work. [98-E)
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 355 of
2000.
F
From the Judgment and Order dated 17.8.99 of the Karnataka High
Court in W.A. No. 730 of 1999.
Sudhir Chandra, S. Muralidhar, A. Mariarputharn, Ms. Arona Mathur,
... Anurag Dayal Mathur and Ms. Anjana Chandrashekar for P.P. Singh for the G
appearing parties.
The Judgment of the Court was delivered by
RUMA PAL, J. The question in these appeals is whether, K. Shekar,
the appellant in C.A. No. 355 of2000 (referred to as as the appellant hereafter) H
90 SUPREME COURT REPORTS [2002] 2 S.C.R.
A is entitled to continue as Additional Professor in the National Institute of
Mental Health and Neuro Sciences {NIMHANS). The appellant was initially
appointed as Lecturer. The post of Lecturer was redesignated as Assistant
Professor pursuant to the 4th Pay Commission. During the pendency of the
proceedings, he has been promoted as Associate Professor on 30th June 1992
B and thereafter as Additional Professor with NIMHANS w.e.f. lst July 1996.
Both the Single Judge and the Division Bench of the Karnataka High Court,
on an application under Article 226 filed by the respondent No. l have held
that he had no such right. This decision has been impugned before us not
only by the appellant but also by NIMHANS by way of a separate appeal.
c MedicalTheResearch
relation of facts can start with I 984 when the Indian Council of
( ICMR), New Delhi undertook to set up a project in major
institutions and medical colleges for developing advanced research. The
Council laid down several conditions subject to which such centers were to
be set up, the relevant clause (wherein ICMR is referred to as the Council)
being
D
"The host institution must undertake to provide the necessary basic
facilities for carrying out medical research for a period of at least 5
years. The host instiri.itions are expected to take over the Centres
from the Council after the stipulated period when the Council's support
has been withdrawn.
E
One such Advanced Research Centre was set up at NIMHANS by
ICMR which came to be known as the ICMR Advanced Research Centre on
Community Mental Health. The appellant was appointed in the Centre as
Research Officer in December 1984.
On 28th September 1986, an advertisement was issued by NIMHANS
to fill the Research Project Posts in the Centre. It was made clear in the
advertisement that the Project was for a period of three years and that some
posts were likely to be made permanent after three years. Of the several posts
advertised, we are concerned with the post of Assistant Professor (Psychiatric
G Social Work). The qualifications prescribed for the post were:
"(a) First or Second Class Master's Degree in Social Work or allied
Discipline or its equivalent.
(b) Ph.DID. Sc. In Medical or Psychiatric Social Work for a recognised
H U~iversity or Institute."
K. SHEKAR v. V. INDIRAMMA[RUMAPAL,J.] 91
In addition, a candidate had to have "4 years teaching and or research A
experience in the discipline after obtaining the Ph.D. Degree". It was also
stipulated that if a suitable candidate is not found, the Selection committee
could recommend a candidate for a lower post
In the application submitted by the appellant, against the column
"Reference" he cited three persons to produce a testimonial from them in B
regard to his fitness for the post. The three referees were persons who were
on the Selection Committee. The Selection Committee did not appoint the
appellant as Assistant Professor of Psychiatric Social Work but appointed
him as a Lecturer in Psychiatric Social Work, a post which admittedly had
not formed part of the advertisement which was published on 28th September C
1986.
The appellant was issued a letter of appointment on 28th November
1986 by the "Chairman, Governing Body/Director ofNIMHANS"; The letter
of appointment stated that the post was temporary and renewable on a year
to year basis and that the cppellant would be on probation for a period of two D
years from the date of appointment "which may be extended or curtailed at
the discretion of the competent authority". The appointiµent letter also specified
...-; that the appellant's appointment was terminable on giving three months'
notice. The appellant signed the letter of appointment in token of acceptance.
On 6th December 1986, a second advertisement was issued by E
NIMHANS for its own purposes and not for the purposes of the ICMR
Centre. This advertisement called for applications for various posts, one of
which was a Lecturer in Psychiatric Social Work. The qualifications were:
. ./ "(a) First or Second Class Master's Degree in Social work or allied
disciplines or its equivalent with Medical Psychiatric Social Work, as F
one of the subjects or equivalent.
(b) M.Phil.. in Psychiatric social Work or equivalent (2 years course)
from a recognised University OR Ph.D. in Medical or Psychiatric
Social Work from a recognised University Institution."
G
The appellant and the respondent No. I both applied.
Interviews were held on 1st March 1987. By this date, the respondent
No. 1 who had already a Master's degree in Psychology and an M. Phil in
Psychiatric .Social Work, had in addition acquired her Ph.D. degree. The
Selection Committee interviewed all the candidates including the appellant H
92 SUPREME COURT REPORTS [2002) 2 S.C.R.
A and the respondent No. 1. As it turned out this was an unnecessary exercise
because according to NIMHANS, the post was reserved for a Scheduled
Caste candidate. After considering the merits of all the candidates, it was
noted that there was only one SC candidate who was not found suitable.
Therefore, the post was not filled up.
B After the second advertisement was issued, Dr. R. Srinivasa Murthy
who was heading the ICMR Centre wrote to the Director, NIMHANS that
NIMHANS had an agreement with ICMR to "absorb the faculty posts". It
was suggested by Dr. Murthy that "in view of this it would be appropriate
that the appointment order could be suitably modified" and that "the same
C could apply to the appointment of Mr. Mahendra Sharma, Lecturer in Clinical
Psychology and Dr. K. Sekar(sic), Lecturer in Psychiatric Social Work". The
suggestion of Dr. Murthy was accepted by NIMHANS and an order dated
21st April 1987 was issued by the Chief Administrative Officer (with a copy
to Dr. Murthy) by way of a Corrigendum to the letter of appointment issued
to the appellant. The first correction was as to the nature of his appointment.
D From a ' temporary tenure appointment', the appointment lette-r was corrected
to read 'the post is permanent but the appointment is on officiating basis'. A
further correction was introduced by the corrigendum which provided that
'on completion of the tenure appointment in the Centre, appointees will revert
back to the service in the respective departments at NIMHANS. Further, the
E services rendered will count for seniority in the service of NIMHANS from
the date of joining the post in the Centre". And so, by virtue of this
corrigendum, the appellant's temporary appointment as a Lecturer with the
Centre, became a permanent one with NIMHANS.
On 9th November 1989, the Government of India approved the re-
F designation and Faculty Improvement Programme in respect of faculty posts
under NIMHANS. Consequent upon this, the appellant was re-designated as
Assistant Professor w.e.f. 1.10.86 with NIMHANS although ·the appellant
continued to serve in the ICMR Centre.
G On lst June 1989, a third advertisement was issued by NIMHANS
calling for applications to fill the posts of Assistant Professor in Psychiatric
Social Work (De-addiction Unit) and Lecturer, Psychiatric Social Work (De-
addiction Unit). The qualifications prescribed were substantially the same as .
those which had earlier been prescribed for the posts of Assistant Professor
and Lecturer in the second advertisement. The respondent No. 1 applied for
H both the posts. No interviews were held nor any selection made and the
K. SHEKAR v. V. INDIRAMMA [RUMA PAL, J.] 93
respondent No. I heard nothing further from NIMHANS. A
The appellant was appointed as Assistant Professor (Psychiatric Social
Work) in NIMHANS in 1990. According to the appellant and NIMHANS,
this was consequent upon the Centre being wound up in June 1990. Along
with the appellant Dr. Mahendra Prakash Sharma was posted to the Department
of Clinical Psychology in NIMHANS. B'
According to the Respondent No. I, the process for appointing an
Assistant Professor started by the advertisement issued in 1989 had been
circumvented by the posting of the appellant from the Centre to NIMHANS.
The respondent No. I filed a writ application in which she challenged inter- C
alia the appointment of the appellant as Assistant Professor in NIMHANS.
She subsequently withdrew this writ petition with the leave of the Court to
file a second writ petition on the same cause of action. In the second writ
petition, the respondent No. I questioned the authority of NIMHANS to fill
the post of Assistant Professor in the Department of Psychiatric Social Work
by converting the temporary post in the ICMR into a permanent one and by D
resorting to reversion on the basis that the appellant had served with
NIMHANS before he was appointed at the Centre. She made specific
allegations of partiality against the respondent No. 3 in the writ petition who
was a member of the Selection Cotnmittee and also one of the persons cited
by the appellant as a reference. E
Statements of objections were filed by the appellant and the Chief
Administrative Officer ofNIMHANS. The respondent No. 3 chose not to file
any reply. It was the case of the appellant and NIMHANS in their statements
of objections, that the procedure followed in the appointment and subsequent
absorption· of the appellant in NIMHANS was perfectly regular. According F
to them there was no need to advertise the post of a lecturer in view of the
following clause in the advertisement: "If the candidate is not found suitable
to the post applied for the selection committee may recommend the candidate
for a lower post in case of highly qualified candidate, the selection committee
may recommend to a higher post other than the one advertised." It was G
further said that the respondent No. I had no locus standi to question the
appellant's appointment in 1986 since she could not have been considered at
all for the post of Lecturer since she had a 3rd class Masters degree. It was
. also stated that the selection process which had been started by the publication
of the advertisement in 1989 had been abandoned because the Union
Government was not interested in funding a de-addiction unit in NIMHANS. H
94 SUPREME COURT REPORTS [2002] 2 S.C.R.
A The learned Single Judge called for the records and after scrutinising
them came to the conclusion that the appellant's appointment as Lecturer
y
pursuant to the advertisement issued on 28th September 1986 was invalid
because the post of Lecturer has not been advertised. He held that the clause
which pennitted the Selection Committee to appoint a 'suitable' candidate
for a lower post, did not entitle the Selection Committee to either create a
B new post which had not been advertised or to at all consider a candidate who
was not eligible to apply for the post advertised. According to the learned
Single JUdge, it was only when the candidate possessed the minimum
qualifications for the post of Assistant Professor and he was not found suitable
for whatever reason to hold the post, that the Selection Committee could
c consider him for being appointed to a lower post. The learned Single Judge )--
held that at the interview for the post of Lecturer held pursuant to the second
advertisement, the Selection Committee had found that the appellant was not
suitable. The learned Judge found from the records that the appellant did not
have any substantive appointment with NIMHANS and, therefore, the question
of his reversion under the Corrigendum did not arise. The learned Judge
D concluded that the selection of the appellant was a 'fraud on the power of
NIMHANS'; that NIMHANS had 'allowed itself to safeguard the interests of
one individual', and that 'undue interest' had been taken in the appointment
of the appellant. The appointment of the appellant having been set aside, the
learned Judge directed the post of Assistant Professor, Psychiatric Social
E Work which then fell vacant, to be filled up in terms of the advertisement
issued in 1989, and further that the experience acquired by the appellant by
virtue of his illega~ appointment was not to be taken into account.
Both NIMHANS and the appellant preferred two separate appeals. The
Division Bench upheld the finding of the learned Single Judge and dismissed
F the appeals.
According to the appellant and NIMHANS, the High Court's finding
that appellant's appointment as Lecturer in 1986 was invalid was uncalled for
as the respondent No. I had not challenged the appointment. Even if she had,
the challenge was grossly delayed. What had been challenged, according to
G the appellants, was the corrigendum dated 21st April, 1987 and the order
directing the posting of the appellant to NIMHANS as Assistant Professor. It
...
is contended that the respondent No. I did not have the locus standi to challenge
the appointment of the appellant either as Lecturer or subsequently as an
Assistant Professor riot only because she herself had not applied pursuant to
H the 29th September 1986 advertisement but also because she did not have the
K. SHEKAR v. V. INDIRAMMA [RUMA PAL, J.] 95
necessary educational qualifications to be appointed to either post. It is urged A
that the writ petition filed by the respondent No. 1 was not bona-fide as the
appointment of Dr. M.K. Sharma as Assistant Professor had not bee!\
challenged. According to the appellant and NIMHANS, NIMHANS was under
an obligation to absorb the employees of the ICMR project because of the
agreement between N!MHANS and ICMR arrived at in 1984. The finding of
the High Court that at the interview held pursuant to the second advertisement, B
the appellant was found unsuitable for the post of Lecturer has been criticised
on the ground that the High Court had failed to note that the post had been
reserved for a scheduled caste candidate and.the only scheduled caste candidate
was not found suitable. According to the appellants, the High Court also
failed to consider that the third advertisement which was issued on 1.6.1989 C
had been abandoned because of a lack of funds. There was as such no
question of the process being completed· as directed by the High Court. The
appellant has also urged us to consider the matter from an equitable point of
view. He has put in several years of hard work after his appointment in 1986
all of which would be nullified if his appointment were set aside.
D
The respondent No. 1 has contended that her basic grievance was that
the NIMHANS had appointed the appellant as Assistant Professor by a
backdoor method, contrary to the Recruitment Rules of NIMHANS, without
completing the process started by the third advertisement. The respondent
No.l's claim was overlooked although she was fully qualified, only to·
accommodate the appellant. The entire process of appointing the appellant as E
against the post of Assistant Professor in NIMHANS was vitiated by fraud
and bias starting with his irregular initial appointment in 1986 and culminating
with his recruitment by absorption. According to the respondent No. 1, the
Recruitment Rules could not be overridden by any agreement with ICMR. It
is pointed out that the affidavit filed on behalf of NIMHANS contained F
several contradictory statements which further substantiated the concurrent
findings of the Single Judge and the Division Bench of the High Court that
the appellant's appointment was the outcome of bias.
We can take judicial notice of the fact that that NIMHANS is an
institution of repute. It has already been so recognised by this Court in B.R. G
Kapoor and Anr. v. Union of India and Ors., [1989] 3 SCC 387. It is also
true that ger.erally speaking Courts have been reluctant to interfere with the
running of educational institutions. But there can be 'no islands of
insubordination to the rule of law'. The actions of educational institutions,
'J.P. Kulshreslha v. Chancellor, Allahabad University and Ors., [1980] 3 sec 418. H
96 SUPREME COURT REPORTS [2002] 2 S.C.R.
A however highly reputed, are not immune from judicial scrutiny. Indeed to
preserve the high reputation, there is a greater need to avoid even the semblance
of arbitrariness or extraneous considerations colouring the Institution's actions.
It may be that the respondent No. I could not directly challenge the
appellant's appointment as Lecturer at the Centre in 1986 either because she
B herself was merely not an applicant but was unqualified to be so appointed
or on the ground of delay. But the immediate grievance of the respondent
No.I was the appellant's appointment in 1990 as Assistant Professor. Because
the appointment was as a result of the appellant's appointment as a Lecturer
in the ICMR Centre in 1986, it was also called into question. To get rid of
C the "weed" so to speak, one had to eliminate the root. It is nobody's case that
the respondent No. I could not be considered for appointment as Assistant
Professor in 1990. The Writ Application was filed in the same year. There
wus as such no question of the respondent No.l's application being defeated
because of any delay.
D If we start with the 'root', - there can be no doubt that the appellant's
appointment as Lecturer in 1986 w.as not in terms of the advertisement pursuant
to which he had applied. Before any appointment could be made to the post ~-
of Lecturer, the post should have been advertised together with the eligibility
criteria in respect thereof. The submission of NIMHANS was that since the
E post of Lecturer was lower than an Assistant Professor's, it was not necessary
to be advertised. If this argument were accepted, it would amount to a violation
of Articles 14 and 16. The absence of an advertisement necessarily deprived
persons who could have applied for the post, of the opportunity of applying
for the post. The clause in the advertisement which enabled the Selection
Committee to recommend the candidate for a lower post if the candidate was
F not found suitable to fill the post applied for, did not give NIMHANS the
power to appoint the recommended candidate against an unadvertised post.
Significantly, in the other advertisements on record dated 6.12.1986 and
1.6.1989, the post of Assistant Professor and the post of Lecturer were both
advertised.
G
The clause, far from allowing NIMHANS the power to dispense with
the advertisement of any lower post as a pre-condition to appointment, indicates
. ,
that only eligible persons could be considered for selection. Once the barrier
of eligibility was crossed, the Selection Committee could consider the
suitability of the candidate for the post advertised. It follows that the appellant
H should not have been called for interview at all. His application clearly showed
K. SHE°KAR. v. V. INDIRAMMA [RUMA PAL, J.]
that he did not fulfill the requisite eligibility criteria for the post he had A
.,,. applied for, because he lacked any post-doctorate experience at all. The power
in the Selection Committee to relax the eligibility criteria cannot be read as
including the power to do away with the criteria altogether.
Then again, the post which was advertised was a temporary tenure post
and yet by virtue of the Corrigendum, the posts were made permanent. It is B
true that the advertisement stated there was a likelihood of some of the
advertised posts being made permanent after three years. All that this meant
was that the posts would remain temporary tenure posts for three years after
which there was a possibility of the appointments being made permanent.
When the post itself was made permanent from its very inception by the C
corrigendum issued several months later, the post should have been re-
advertised so as to give fair notice to all prospective candidates regarding the
nature of the vacancy to be filled. It was not open to NIMHANS to
retrospectively and subsequent to the appointment change the nature of post
advertised by issuing the Corrigendum.
D
In any case, the Corrigendum proceeded on a mis-interpretation of the
terms and conditions under which the Centre was set up by the ICMR. There
was no obligation on the part of the NIMHANS by reason of any 'agreement'
with ICMR to absorb any employee of the Centre. ICMR's condition as
quoted earlier merely obliged all Institutes where such centres were set up to E
continue the work after ICMR withdrew its financial support at the end of
five years.
The corrigendum in so far as it provided for the 'reversion' of persons
working at the Centre to NIMHANS certainly could not operate to revert
back the appellant. The Cadre and Recruitment Rules of NIMHANS provide
that appointments to the posts of Assistant Professor and Lecturer are to be
F
made by direct recruitment. Besides, the appellant was in fact serving as
Research Officer with the ICMR Centre when he was appointed as a Lecturer
in 1986. There was a distinction between appointment as a Lecturer at the
ICMR Centre and appointment to the post of a Lecturer in NIMHANS. That
is why the appellant, even after having been issued the letter of appointment G
as Lecturer in the ICMR Centre, applied again pursuant to the second
advertisement for appointment as Lecturer in NIMHANS. He could not, in
' the circumstances, be reverted back to NIMHANS.
It is unnecess~ry to consider any further submission as there are already
sufficient reasons for dismissing these appeals and upholding the judgment H
98 SUPREME COURT REPORTS [2002] 2 S.C.R.
.A of the Karnataka High Court. y
However the appellants are correct in their submission that the High ..
Court should not have directed the selection of an Assistant Professor on th~
basis of the 1989 advertisement. That advertisement related to appointments
in the De-addiction Unit. NIMHANS' statement that the setting up of the De-
B addiction Unit in NIMHANS had been abandoned because of lack of funds
has been categorically refuted by. respondent No. 1. Without going into the
controversy having regard to the lapse of several years on account of the
pendency of the litigation before different Courts, it would not be appropriate
to direct the process initiated in 1989 to be completed more than 11 years )..
c later. The vacancy created by the setting aside the appellant's appointment
will have to be filled and a fresh advertisement will have to be issued by
NIMHANS in accordance with its Cadre and Recruitment Rules. The
unfortunate consequence that the appellant will suffer by reason of the setting ,.
aside of his appointment as Assistant Professor in NIMHANS cannot be
avoided on any equitable considerations although the harshness may be ~
D mitigated' to some extent.
Accordingly, while affirming the decision of the High Court, we modify ~
it" to the 7xtent that the actual experience gained by the appellant by virtue
of his ~pointment as Assistant Professor may be taken into account if the
appellant applies pursuant to any future advertisement that may be issued by
E NIMHANS for the post of Assistant Professor in the Department of Psychiatric
Social Work.
With this modification, the appeals are dismissed but without any order
~
as to costs.
F S.K.S: Appeal allowed. •
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