TMI Blog1974 (12) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... alue of law is to last and be not lost. The two appeals before us, by special leave, unfold a musical-chair type situation where three candidates ran for two posts in the government-run Patna and Dharbanga Medical Colleges. Inevitably one lost or, rather, was screened as ineligible, his British work and experience notwithstanding, and, chagrined by his discomfiture, he Dr. Mukherjee, challenged the whole selection by a writ petition on the short and ambitious ground that he was not only qualified but superior, with his bright British career, to the other two India-trained hands, Dr. Ram and Dr. Jamuar, but was illegally rejected as unqualified. The main issue what arises and was argued before us by he State's counsel, supported by Shri Garg for the other candidates, is that the High Court, which allowed the writ petition, grievously erred in probing improperly into the concerned Cabinet. papers and upsetting government's orders of appointment, upholding the petitioner's eligibility and directing a reconsideration of the claims of all the contenders on certain untenable finding of fact and indefensible interpretation of law. Did the petitioner possess the prescribed q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice. Like in other complex modern operations, the processes of legal justice call for management techniques and methodological reforms, anD definition of the range of operation for success, all of which must be the Public concern of the Bench and the Bar (and the community) alike, animated by the social mission of shortening time and expense and becoming meaningful in securing justice. These observations made enpassent, are provoked by '-he tricky meshes of the litigation in which the parties here are caught and the frequent phenomena these tend to be. The petitioner before the High Court. Dr. Mukherjee, is the 1st respondent in both the atppeals before us while the State of Bihar, the Health Commissioner and the Health Minister are the atppellants in C.A. 1430 of 1974. The defeated doctors Dr. Ram and Dr. Jamuar, whose appointments have been upset by the High Court, are the appellants in the connected appeal No. 1431 of 1974. The quarrel is over whether the 1st respondent could be considered for appointment. Certain peripheral contentions apart, the core of the matter is the possession by Dr. Mukherjee of teaching experience 'as Regiscrar for at least three year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ jurisdiction of the High Court and filed C.W.J.C. 754 of 1972 contending that he had acquired the required teaching experience during the time he worked in the United Kingdom and was therefore entitled to be appointed lecturer. The State met the challenge on many grounds. Inter alia, it urged that the rule does not recognize teaching experience gained in a foreign country. A circular letter issued by the Deputy Director of Health Services, dated April 14, 1963 was also cited We agree with the High Court (vide para 24 of its judgment) that the said circular though adopted by Government on July 13. 1972 had no hearing on the crucial issue of actual teaching experience. The Court, however, quashed the decision of Government and directed it to reconsider the case of the 1st respondent here together with this of the other two. Government examined the cases (le novo in obdience to the direction of the Court but again held against the 1st respondent's eligibility. The aggrieved 1st respondent hurried to the High Court again and succeeded a second time in persuading it to quash the order and to issue a writ to the State to. consider the claim of Dr. Mukherjee, the 1st respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eching hospital bad it come under the notification of the Minister. The converse does not necessarily follow. We are concerned with an Indian situation and called upon to construe words which are not defined and therefore bear their natural meaning. In this view we do not proceed to examine whether the hospitals in which the 1st respondent claims to have gained teaching experience belong to the category designated under s. 11(8) of the British Act. Section 3 of the Indian Act makes it clear that the constitution and composition of a high powered Council of professional men vested with the responsibility to oversee the conduct of examinations and ensure minimum standards of medical education is among the, objects of the statute. The Council has vast powers including the role ,of consultant in some vital matters and according recognition of medical qualifications granted by institutions in India (s. 11), in countries with which there is a scheme of reciprocity (s. 12) and of degrees etc. granted by certain other institutions (s. 13). These three categories of medical institutions are covered by Schedules One to Three of the Act. Section 14 relates to recognition by the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k assistance in the careful exercise of public power. All that we mean to emphasize is that the plain words we have already referred to, about the meaning of which the two sides have betted, should be read having due regard to their normal import, statutory setting, professional object and insistence on standards. Shri Jagdish Swarup, counsel for the State, took us through the various provisions of the Act and emphasised that by and large the medical institutions the Act had in view and over which the Council had control were Indian and not foreign, and that therefore the 'teaching institutions' and 'teaching experience' specified in the regulations in question also must posses Indian flavour. Patriotism apart, it is apparent from the Act that it has recognized medical institutions in Universities without India (vide s. 12 and s. 14) The question is not therefore so simple as to be solved by reference to the Indian map. This country, while rejecting colonial reverence for British institutions has continued to accept and respect advances made in medical specialities abroad, including the United Kingdom and the United States, as is reflected in the Act. The India-boun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also to see whether Dr. Mukherjee's' service in those institutions as a Registrar, even if assumed in his favour, amount to teaching experience. We will deal with these two decisive questions presently. We agree that bald expressions 'teaching experience' and 'teaching institutions' with blurred contours have been at the' root of the controversy but, as Denning, L.J., in Seaford Court Estates Ltd. v. Asher [1949] (2) All. E.R. 155, 164., observed : When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament.... and then he must supplement the written words so as/to give 'force and life' to the intention of legislature .... A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases. We take the cue from these observations in the construction we. have adopted above. The Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointing authority'. Courts cannot and do not appoint petitioners to posts they claim but lay down the legal criteria and give the correct directions, the Executive being the organ of State to exercise, the power to appoint but in conformity with the legal directions. The State Government being that authority has to take the ultimate decision. There is some force in the grievance of counsel for the State that the Court should not ordinarily call for Cabinet papers and start scrutinising the nothings and reports of the various officers marely because a writ petition challenging the order has been made. When a writ of certiorari is moved, the Court has the power to call for the record, but in case where mala fides is not alleged or other special circumstances set out, sensitive materials in the possession of government may not routinely be sent for. The power of the Court is wide but will have to be exercised judicially and judiciously, having regard to the totality of circumstances, including the impropriety of every disgruntled party getting an opportunity to pry into the files of government. Of course, acts of public authorities must ordinarily be amenable to public scrutiny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... di, has the Court gone away? No, and we will give our grounds. While officious interference with every wrong government order is not right, here the 1st respondent has complained of violation of the regulations which bind State and citizen alike. Although the State need not always make a reasoned order of appointment, reasons relevant to the rules must animate the order.Moreover, an obligation to consider every qualified candidate is implicit in the 'equal opportunity' right enshrined in Arts. 14 and 16 of the Constitution. Screening a candidate out of consideration altogether is illegal if the applicant has eligibility under the regulations. And for such a drastic step as refusal to evaluate comparatively, i.e., exclusion from the ring of a competitor manifest grounds must appear on the record. Such being the legal perspective, let us test the present order of government by those canons. The explanatory affidavit of the appellant State and the records fairly produced by it before the Court disclose that Government has adopted a turbid attitude. Did it disregard Dr. Mukherjee out of band for want of Indian teaching experience in an Indian teaching institution ? Shri Jagd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he qualifications and relative worth of all the candidates. Length of teaching experience will certainly be a relevant- not necessarily dominant-factor. The quality of their expe- rience, their academic attainments and the intellectual ability to stimulate students in the speciality and the investigative curiosity likely to be imparted to the alumni- these weighty considerations will promote public weal in a country hungering for talented doctors. Government's sole concern, we feel confident, will be to Get the most capable, in the public interest and in- the hope that this happy wish will not fail we proceed to issue the substantive declarations and directions. We declare the orders of appointment of the appellants in C.A. No. 1431 of 1974 as bad in law and direct the appellants in C.A. 1430 of 1974 to reconsider de novo the appointments to the two posts of lecturers. In so doing, the State will act in conformity with the findings and observations made above. The first respondent's eligibility on the basis of the relevant regulation will be examined afresh before February 15, 1975, the parties, particularly the 1st respondent,, being at liberty to adduce materials to sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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