DR. AKSHYA BISOI AND ANOTHER versus ALL INDIA INSTITUTE OF MEDICAL SCIENCES & OTHERS on 6 February 2018

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

SUPREME COURT REPORTS

[2018] 1 S.C.R.

ADR. AKSHYA BISOI AND ANOTHER

v.

ALL INDIA INSTITUTE OF MEDICAL SCIENCES & OTHERS

(Writ Petition (Civil) No 1179 of 2017)

BFEBRUARY 06, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D.Y. CHANDRACHUD, JJ.]

Service Law:

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CInter-se Seniority – Determination of – Sought by filing petitionu/Art. 32 of the Constitution – In respect of the selection to the postof ‘Additional Professor’ made in September 2005 – On the basisof recommendations of Standing Selection Committee – Held: ThePolicy of 1997 indicates that the gradings given by all the membersof the Selection Committee and the technical experts are to be placedDbefore Chairman of the Selection Committee and final selection ‘maybe made’ on the basis of gradings given by the members and theexperts of the Committee – The Committee, in making finalrecommendation in regard to the order of merit of the candidates,had taken into consideration their performance, their records andEthe opinion of the experts – Therefore, the ranking assigned cannotbe regarded as being in breach of Policy of 1997 – It would beiniquitous to unsettle the position of seniority over twelve yearsafter the petitioners and fourth respondent were selected asAdditional Professors – The delay on the part of the petitioners inseeking recourse to legal remedies, must weigh against them – Delay/FLaches – Constitution of India – Art. 32.

The two petitioners (cardiac surgeons in All India Instituteof Medical Sciences) seeking a writ of Mandamus directing thefirst respondent to determine their seniority in relation to thefourth respondent kin terms of a binding Policy of 1997.GAccording to the petitioners at the time of their (petitioners and4[th] respondent) selection as ‘Additional Professors’ Gradesallocated to petitioner No.1 were higher to respondent No.4 asone of the Members/Expert Advisers had allocated higher gradesas compared to respondent No.4 and therefore, would rank seniorHto respondent No.4.

Dismissing the Petition, the Court

HELD : 1. Recruitment to the post of Additional Professorwas carried out in 2005, i.e. well over 12 years ago. The petitionershave instituted these proceedings under Article 32 in November2017 to question the order of ranking made by the SelectionCommittee on 12 September 2005. There is no cogentexplanation for this belated recourse to legal remedies. Thepetitioners cannot legitimately explain the delay on their partmerely by contending that they were representing to the Firstrespondent to remedy their grievances. The petitioners may havebelieved in good faith that the AIIMS administration would payheed to their grievances. They had a sympathetic ear of the UnionMinistry of Health and Family Welfare. But twelve years is toolong a period, by any means, to not seek recourse to judicialremedies. As the narration of facts would indicate, the GoverningBody had on 14 April 2012 decided to maintain the order of meritin terms of which the Fourth respondent was ranked first, abovethe two petitioners. Even thereafter, a three member committeewas constituted by the Governing Body in October 2012 and adecision was once again taken on 19 July 2013 to maintain theorder of seniority. This was reiterated on 12 May 2014 and 22June 2016. The petitioners were thus aware of the consistentposition which was adopted by the First respondent. The delayon their part in seeking recourse to their legal remedies mustweigh against them. At this stage it would be manifestly unfair tounsettle the inter se seniority between the three Professors inthe CTVS department by reopening the recommendation madeby the Selection Committee in 2005. [Para 17] [902-G-H; 903-A-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 themembers of the Selection Committee and the technical expertsare to be placed before the Chairman of the Selection Committeeand the final selection of the candidates “may be made” on thebasis of the gradings/markings of the members of the committeeand the technical experts. The expression “may be made”. Thejudgment of the Delhi High Court in Dr Dilip Kumar Parida vAIIMS holds that the view of the experts who are co-opted in the A

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Aselection process is only advisory and that the members of theStanding Selection Committee of AIIMS are not bound by theiropinion. This position in the judgment of the Delhi High Courtshould not be read to suggest that the experts who are co-optedas part of the Selection Committee have no role and that theother members have to decide on the selection, independentlyBof their views. Experts are co-opted in order to ensure that theSelection Committee is broad-based; that the selection isobjective; and that the experience and knowledge of expertsdrawn from outside provides a valuable input in the ultimatedecision. The fact that selection ‘may be made’ on the basis ofCthe grading given by the members of the Selection Committeeand the technical experts suggests that the determination of meritis not merely a mechanical totalling of grades allotted. TheSelection Committee has to act objectively. This undoubtedlyrequires giving due credence to the view of the experts. Butwhile doing so, it must have due regard to all relevant aspectsDbearing on the interest of the institution. The SelectionCommittee has to assess the credentials of the candidates whichwould include the service profile of the candidate. It is in thissense that the Delhi High Court has to be construed to meanthat while the views of the experts co-opted to the SelectionECommittee constitute a valuable perspective and input, theycannot be regarded as binding. The members of the SelectionCommittee would have to consider the views of the experts andto evaluate them together with all other relevant circumstances.[Paras 20 and 21] [905-G-H; 907-A-C]

F3. In the present case, while making its recommendationsfor appointment to the post of Additional Professor, the SelectionCommittee had borne in mind the performance of the candidates,their records as well as the opinion of the technical experts. Theminutes of the meeting of 12 September 2005 indicate that theviews of the technical experts were considered. Hence, theGranking which has been assigned cannot be regarded as being inbreach of the policy decision of 1997. It would be iniquitous tounsettle the position of seniority, over twelve years after thepetitioners and the Fourth respondent were selected asAdditional Professors. Even thereafter, when each of them hasH

been promoted as a Professor, it is the Fourth respondent whohas been ranked higher than the petitioners. [Para 22] [907-C-G]

Case Law Reference

[2013] 9 SCR 609 relied onPara 18

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,Dhananjay Baijal, Ms. Smriti Shah, Divyanshu Rai, R. Balasubramanian,Gaurav Sharma, Ms. Aarti Sharma, Snehasish Mukherjee, Gopal ShankarNarayan, Apoorva Agarwala, Ms. Pooja Dhar, Mayank Sapra, AkshayAmritanshu, G. S. Makker, Ms.Veera M., Shrutanjaya Bhardwaj, R. Bala,Ankur Talwar, Aparajit Singh, Ms. Pooja Dhar, Advs for the appearingparties.

The Judgment of the Court was delivered by

The Judgment of the Court was delivered by DR. D. Y. CHANDRACHUD, J. 1. The jurisdiction of this Courtunder Article 32 of the Constitution has been invoked by two cardiacsurgeons. They are attached as Professors to the Department of CardioThoracic and Vascular Surgery (CTVS) at the All India Institute ofMedical Sciences. Each of them, as indeed the Fourth respondent inrelation to whom they raise a dispute, has an enviable record of servicein AIIMS. Disputes in service are not a rarity, even among doctors. Thedistinguished service of the contesting doctors in the present case rendersthe task of the adjudicator unenviable. That one of them will rank senioris no reflection of the merit of the others. Life is not always equitable inassigning accolades.

2. The relief which the petitioners seek is a writ in the nature ofmandamus directing the First respondent to determine their seniority inrelation to the Fourth respondent in terms of a binding policy of 1997.They seek a direction that since their selection on 12 September 2005 asAdditional Professors, they would rank senior to the Fourth respondent.The petitioners challenge the legality of the office memoranda dated 20April 2010, 14 July 2017 and 24 August 2017 issued by the Firstrespondent.

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A3. 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 June2003. On 1 July 2003, they were promoted as Associate Professors. On23 September 2005, they were appointed by direct recruitment asAdditional Professors. On 1 July 2010, they were promoted asBProfessors, a position which they now occupy. The seniormost will bedesignated as Head of Department of CTVS.

4. The Attorney General for India has placed on the record atabular statement, reflecting the comparative position in the merit listCand seniority, in each of the positions to which the petitioners and fourthrespondent were appointed or, as the case may be, promoted. Forconvenience of reference, the statement is reproduced below:

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The above statement would indicate that the Fourth respondenthas consistently been ranked senior to the petitioners as AssistantGProfessor, Associate Professor, Additional Professor and Professor. Theappointment of all the three surgeons as Additional Professors was on23 September 2005. For well over twelve years, the Fourth respondenthas been placed senior to the Petitioners.

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5. On 25 April 2005, four posts of Additional Professor wereadvertised in the department of CTVS, which were to be filled up throughopen selection. The shortlisted candidates were called for interviewbefore a Selection Committee on 12 September 2005. The SelectionCommittee recorded the minutes of its decision in the following terms:

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“ALL INDIA INSTITUTE OF MEDICAL SCIENCESSELECTION COMMITTEE MEETING HELD ON12[th] SEPTEMBER 2005

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Considering the performance of candidates and their records, andalso the opinion of the technical advisers, the Committeerecommends the following candidates for the post of AdditionalProfessor 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

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WAITING LIST

1. Three extra increments recommended for each one of the abovecandidates.”

The Selection Committee consisted of seven persons. Among themwere two experts drawn from outside. The grades which wereallocated by each of the members of the Selection Committee to thecontesting parties in the present case are tabulated below:

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“Grades awarded by the Selection Committee for directrecruitment to the Post of Additional Professor, CTVS on12.9.2005

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M em berM emberM emberMem berM emberEx pert/Expert/1 2 3 4 5 Advi ser Adviser 12Dr Shiv K A+ A+ A+ A+ A+ A+ A C houdhary (Responden t No. 4)Dr U K A+ A+ A+ A+ A+ A+ A C howdh ury G(Petitioner No. 2)Dr.Biso i A+ A+ A+ A+ A+ A+ A+ (Petitioner No.1

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AThe above chart would indicate that all the seven members of theSelection Committee, assigned an A+ grading to the First petitioner. Sixmembers of the Selection Committee assigned an A+ grading to theSecond petitioner and the Fourth respondent. One of the two expertswho had rated the first petitioner as A+, rated the second petitioner andthe Fourth respondent as A. It is on this basis that the petitionersBcontend that the order of merit which was drawn up was erroneous andthat the First petitioner should have been placed at the top of the orderof merit instead and in place of the Fourth respondent.

6. According to the petitioners, in 1997, the First respondentdecided that in order to make the selection process transparent, it hadCbeen resolved that the final selection of candidates would be made onthe basis of the grading by the members of the Selection Committee.The petitioners claim that if the policy of 1997 were followed the Firstpetitioner would have ranked higher than the Fourth respondent. Thus,the petitioners claim that the First petitioner should rank senior to theDFourth respondent by virtue of the fact that in the grading given to therival candidates by the members of the Selection Committee in 2005, hewas allotted a higher grade than the Fourth respondent by one of theseven members, the other members having allotted the same grading.The petitioners have sought to buttress this submission by placingreliance on a decision communicated on 14 October 2014 by the UnionEMinistry of Health and Family Welfare under Section 25 of the All IndiaInstitute of Medical Sciences Act 1956 requiring the First respondent toexamine the issue of seniority, amongst the three professors in the CTVSdepartment “based on the recommendations of the Standing SelectionCommittee meeting held on 12 September 2005” and to fix the seniorityF“strictly” in accordance with the policy decision of 1997.

7. Mr Vikas Singh, learned senior counsel urged that in terms ofthe policy decision of 1997, it was necessary that the inter se seniorityof selected members of the faculty should be fixed purely on the basis ofmerit; merit being determined in terms of the grades awarded by theGmembers of the Selection Committee including the experts. Thesubmission is that the decision which was communicated by the Uniongovernment in exercise of powers conferred by Section 25 of the AIIMSAct was binding on the First respondent. Reliance was placed on theprovisions of Section 25 which read thus:

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“25. Control by Central Government

The Institute shall carry out such directions as may be issued to itfrom time to time by the Central Government for the efficientadministration of this Act.”

The petitioners also submit that the grade sheets pertaining to the2005 selection in the department of CTVS were put up to theGoverning Body on 16 January 2012 for scrutiny. The GoverningBody observed thus:

“…. The representations were discussed at length and the GBfound merit in the claim of Dr. A.K. Bisoi as he was rated bestamong three Additional Professors recruited to the post underdirect recruitment with him in the year 2005….”

The petitioners have also relied upon a communication of the thenDirector, Dr R C Deka, to the President of AIIMS on 27 June 2012inter alia stating thus:

“…. I am forwarding his submission to the President for hisconsideration as I believe that he has a claim as per the recordsproduced by him and the available records at AIIMS also suggestedhim as the senior most among the three Additional Professorsselected at that time, if the grades given to him are considered onmerit as per Institute Body decision dated15.01.97……..”

The Head of the CTVS Department demitted service on 31December 2017. The senior most would assume charge as Head ofDepartment.

8. In pursuance of the order of this Court dated 11 December2017, issuing notice, the learned Attorney General for India has appearedon behalf of the First, Second and Third respondents with Mr RBalasubramaniam. Mr Mukul Rohatgi and Mr P S Patwalia, learnedsenior counsel have appeared on behalf of the Fourth respondent. Acounter affidavit has been filed on behalf of the First, Second and Fourthrespondents in these proceedings. Pleadings have been completed witha rejoinder as well.

9. A preliminary objection has been raised to the maintainabilityof the Writ Petition on the ground that the petitioners have an efficaciousalternate remedy to raise a dispute of inter se seniority before the Central A

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AAdministrative Tribunal. Hence, it was urged that a petition under Article32 of the Constitution should not be entertained. This submission hasbeen countered on behalf of the petitioners by Shri Vikas Singh, learnedsenior counsel, who adverted to a decision of a Division Bench of theDelhi High Court in Dr Dilip Kumar Paridav All India Institute ofMedical Sciences[1].Learned senior counsel urged that the Delhi HighBCourt has held that “the role of the experts co-opted in the selectionprocess is merely advisory” and that the members of the StandingSelection Committee are not bound by the opinion of the experts. Inview of this statement of law, the correctness of which has been placedin issue, it has been urged that the remedy of approaching the Tribunal isCnot efficacious, the Tribunal being bound by the decision of the HighCourt. Hence, it was urged that it would be appropriate for this Court toconsider the position in law and to exercise its jurisdiction under Article32, especially having regard to the fact that the First respondent is aninstitution of national importance. It was urged that a dispute in regardto seniority ultimately affects the efficiency of personnel and hence it isDnecessary for the court to resolve the question.

10. During the course of the hearing, affidavits have been filed onbehalf of the First, Second and Fourth respondents traversing the entiredispute on merits. The learned Attorney General as well as the learnedSenior Counsel appearing for the contesting doctors have assisted thisECourt on the merits of the matter. Since the issue has been argued onmerits as well, we have in the considered exercise of our judgmentdetermined that it would be appropriate to resolve the matter here ratherthan relegating the parties to a protracted litigation before the Tribunaland the High Court. We have also borne in mind the submission of theFpetitioners that in view of the judgment of the Delhi High Court notedabove, it would be necessary for this Court to set down the position.

11. While analysing the grievance of the petitioners, a strikingaspect of the matter which has emerged before the Court is that thefixation of the order of seniority as between the petitioners and the FourthGrespondent, pursuant to their selection as Additional Professors on 23September 2005 has been examined on several occasions by theGoverning Body of the First respondent. They include the following:

(i) At the 147[th]meeting of the Governing Body on 14 April 2012, it was resolved thus:H1LPA 360 of 2004, decided on 9 January 2012

“The Governing Body considered the representation submittedby Dr A K Bisoi and Dr U K Choudhary. It also considered thejudgment of the Delhi High Court of 9[th] February 2012 in the casefiled by Dr Dilip Kumar Parida. After examining all aspectsincluding the Institute Body’s Resolution dated 15.1.1997, theadvice of the Director, the representation submitted by Dr A KBisoi and Dr U K Choudhary, the Governing Body decided thatinter seseniority of Dr Shiv Kumar Choudhary, Dr U K Choudharyand Dr A K Bisoi would be maintained as had been recommendedby the Standing Committee in the year 2005.;

(ii) The First petitioner continued to represent his grievance. On 22October 2012, the Governing Body in its 148th meeting resolvedthat a Committee consisting of (i) The Health Secretary; (ii)Director, AIIMS; and (iii) Dr S P Agrawal would examine thefacts/records and place its report before it. Based on the reportof the Committee, the Governing Body resolved at its 149[th] meetingheld on 19 July 2013 thus:

“It was accordingly decided not to make any changes nor toredefine seniority of the 3 Professors which was decided bythen GB on the basis of the recommendations of SSC.”

(iii) On 12 May 2014, the Governing Body revisited the issue at its151[st] meeting and resolved thus:

“After discussion, the Governing Body reiterated its decisiontaken in the 149[th] meeting of G.B. held on 19[th] July, 2013. Itwas unanimously decided that, this matter need not be dis-cussed again,” ;

(iv) Subsequently, the Union Health Minister directed AIIMSadministration to once again bring the matter relating to the seniorityof the first petitioner before the ensuing meeting of the GoverningBody. Following this at the 153[rd] meeting of the General Bodywhich was held on 22 June 2016, the earlier decisions were notedand the following decision was taken:

“The Governing Body considered the issues involved in theseniority among Professors in the Department of CTVS. TheGoverning Body noted the earlier decisions. It was decidedthat the matter may be explained through a communicationby AIIMS to the Ministry and be placed before HFM cumThe President, AIIMS for his consideration.”

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APursuant to the above decision, a communication was addressedto the Ministry of Health and Family Welfare on 10 October 2016 statingthus:

“The Standing Selection Committee is the final arbitrator andinterpreter of the Institute Body guidelines in the matter ofBselections. It implements the guidelines within the statutorylimitation taking into consideration not only the performance atthe time of interview but also overall assessment of thecandidates including the curriculum vitae submitted by thecandidates in the application form. The Standing SelectionCommittee, in this case, has placed Prof. (Dr) Shiv ChoudharyCabove Prof. (Dr.) A.K. Bisoi.”

12. The above narration indicates that since April 2012, theconsistent position which has been maintained by the First respondent isin line with the order of merit which was recommended by the SelectionCommittee by which the Fourth respondent was placed above theDpetitioners when they were selected for appointment as AdditionalProfessors.

13. On 14 October 2014, a communication was addressed to theDirector of the First respondent by the Union Ministry of Health andFamily Welfare, in exercise of its powers under Section 25 of the AIIMSEAct, 1956. The directive was in the following terms:

“3.In view of above, the institute is directed under Section 25 ofAIIMS Act 1956 to examine the issue of fixation of seniorityamongst the three professors in the Department of CTVS, AIIMS,New Delhi who were appointed as direct recruits to the post ofFAdditional Professors in CTVS, AIIMS, New Delhi based on therecommendations of the Standing Selection Committee meetingheld on 12.9.2005 and fix the seniority strictly in accordance withthe policy decision of Institute Body in 1997 in correct order.”

The above directive under Section 25 required the First respondentGto examinethe issue of seniority amongst the three professors in thedepartment of CTVS. The directive refers to the appointment of thethree professors based on the recommendations of the Standing SelectionCommittee of 12 September 2005. Seniority was required to bedetermined “strictly” in accordance with the policy decision of the instituteof 1997.H

14. In compliance with the directive, the First respondent informedthe Union government by a letter dated 18 February 2015 thus:

“This issue had been placed before the governing body first in itsmeeting held on 16.1.2012 and as desired by the GB, the issuewas again placed before it on 14.4.201. It was decided by the GBthat the inter se seniority among Dr S K Choudhary, Dr U KChowdhury and Dr A K Bisoi would be examined as had beenrecommended by the Standing Selection Committee in the year2005.

Further, the Governing Body in its meeting held on 22.10.2012while considering action taken report on the recommendation ofprevious GB meeting took place note of representations of Dr AK Bisoi and decided that a committee consisting of HealthSecretary, Director AIIMS and Dr S P Agarwal would examinethe facts/records and place their report before the Governing Body.

Accordingly, the committee under the chairmanship of Sh P KPradhan, then Secretary, Health examined the issue but expresstheir inability to comment on the recommendations on the StandingSelection Committee, stating that the committee does not havethe mandate to review the decision of the Standing SelectionCommittee as per the guidelines approved by the Institute Bodyin its meeting held on 18.9.1997. The committee however,observed that the issue of seniority becomes relevant only forbecoming Head of the Department and therefore, they havestressed the need to implement the decision of the Governing Bodyin 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 Secretarywas placed before the Governing Body in its meeting held on22.10.2012 where in it was decided neither to make any changesnor to re-define seniority of the three professors which was decidedby the G.B. on the basis of recommendation on Standing SelectionCommittee.

In pursuance of the Section 25, of AIIMS Act, 1956 directives tofix inter se seniority among Dr S K Choudhary, Dr Ujjwal KumarChoudhary and Dr A K Bisoi stands decided as per the decisionof the Governing Body dated 23.9.2005, 14.4.2012 and22.10.2012.”

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A15. In response to a further query of the Ministry of Health andFamily Welfare dated 31 March 2015, the First respondent clarified thematter on 23 September 2015 in the following terms :

“The recommendations of the Selection Committee wereapproved by the Governing Body in its meeting held on 23.9.2005Band thereafter these three faculties were appointed as AdditionalProfessor. The seniority of direct recruit faculty is determined inthe order of merit in which they are recommended by the SelectionCommittee. As per the recommendations of the SelectionCommittee as stated above, Dr S K Choudhary is senior to Dr UK Chowdhury who is senior to Dr A K Bisoi...C

Regarding the other two queries, it is informed that Dr S KChoudhary, Dr U K Chowdhury and Dr A K Bisoi were initiallyappointed as Assistant Professor at the Institute. All these werepromoted as Associate Professor under Assessment PromotionScheme before they were considered for the position of AdditionalDProfessor under direct recruitment quota in 2005. The seniorityamong these three faculties in the grades of Assistant Professorand Associate Professor were in the same order as in the post ofAdditional Professor i.e. Dr S K Choudhary is senior to Dr U KChowdhury who is senior to Dr A K Bisoi.”

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16. The Union government had in terms of its directive dated 14October 2014 required the First respondent to examine the issue of interse seniority in accordance with the policy decision of 1997. The directivedid not mandate that the First petitioner rank senior to the Fourthrespondent. After due examination of the matter, the Union governmentFwas informed that the order of selection recommended by the SelectionCommittee in 2005 and approved by the General Body was maintained.

17. The Court is confronted in the present case with a situation inwhich recruitment to the post of Additional Professor was carried out in2005. That was well over 12 years ago. The petitioners have institutedGthese proceedings under Article 32 in November 2017 to question theorder of ranking made by the Selection Committee on 12 September2005. There is no cogent explanation for this belated recourse to legalremedies. The petitioners cannot legitimately explain the delay on theirpart merely by contending that they were representing to the Firstrespondent to remedy their grievances. The petitioners may have believedH

in good faith that the AIIMS administration would pay heed to theirgrievances. They had a sympathetic ear of the Union Ministry of Healthand 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 wouldindicate, the Governing Body had on 14 April 2012 decided to maintainthe order of merit in terms of which the Fourth respondent was rankedfirst, above the two petitioners. Even thereafter, a three membercommittee was constituted by the Governing Body in October 2012 anda decision was once again taken on 19 July 2013 to maintain the order ofseniority. This was reiterated on 12 May 2014 and 22 June 2016. Thepetitioners were thus aware of the consistent position which was adoptedby the First respondent. The delay on their part in seeking recourse totheir legal remedies must weigh against them. At this stage it would bemanifestly unfair to unsettle the inter se seniority between the threeProfessors in the CTVS department by reopening the recommendationmade by the Selection Committee in 2005.

18. In holding that an unexpected delay on the part of the petitionerswould disentitle them to relief, we place reliance on a judgment of thisCourt in State of Uttaranchal v ShivCharan Singh Bhandari[2] . Thelearned Chief Justice, after adverting to the settled position of law in thatregard, observed thus:

“27. We are absolutely conscious that in the case at hand theseniority has not been disturbed in the promotional cadre and nopromotions may be unsettled..the respondents chose to sleep likeRip Van Winkle and got up from their slumber at their own leisure,for some reason which is fathomable to them only. But suchfathoming of reasons by oneself is not countenanced in law. Anyonewho sleeps over his right is bound to suffer.” (Id at page 185)

“28. Remaining oblivious to the factum of delay and laches andgranting relief is contrary to all settled principles and even wouldnot remotely attract the concept of discretion. We may hasten toadd that the same may not be applicable in all circumstances wherecertain categories of fundamental rights are infringed. But, a staleclaim of getting promotional benefits definitely should not havebeen entertained by the Tribunal and accepted by the HighCourt.”(Id at page 186)

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AThere has to be an element of repose and a stale claim cannot beresuscitated.

19. The issue of making selections “transparent and moreparticipatory” at AIIMS was entrusted to a sub-committee formed forthat purpose in 1997. The suggestions of the sub-committee, togetherBwith administrative comments, were placed before ameeting of theInstitute body as Agenda Item 5 on 15 January 1997. The agenda noteinter 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 asCwell as the technical experts should be asked to give confidentiallygradings/markings of each candidate in the following manner

1) A+

2) A

3) B+

4) BD

5) C

The gradings given by all the members of the SelectionCommittee and technical experts should be placed beforethe Chairman of the Selection Committee and final selectionof the candidate will be made on the basis of gradings/Emarkingsgiven by the members of the Selection Committeeand the technical experts as mentioned above. In case, thereis a tie in the gradings in respect of any candidate, the finaldecision for the selection of the candidate, should rest withthe Chairman of the Selection Committee after discussionwith other members of the Selection Committee.F

If the above method is applied for making the final selection ofthe candidates, then there is no need for the technical experts tocontinue to sit in the Selection till a final decision is mad. In thisway, the confidentiality of the selected candidate will be maintained.GThe members of the Selection Committee and the technical expertswill specifically be asked to give the gradings in respect of eachand every candidate as mentioned above. The same procedureshould be applied in case of candidates who are appearing underthe Assessment Promotion Scheme.”

(emphasis supplied)

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The suggestions of the sub-committee and the administrativecomments were approved. Subsequently on 15 April 1997, it was foundthat there was a disparity between the recommendations of the sub-committee and the administrative comments. On 18 September 1997 amodified set of administrative comments was brought before the Institutebody. The modified comments inter alia stated thus:

“(i)All the members of the Selection Committee as well as theTechnical Experts may be asked to give, confidentially, gradings/markings to each candidate in the following manner :- a)A+

b)A

c)B+

d)B

e)C

(ii) The gradings given by all the members of the SelectionCommittee and the Technical Experts, may be placed beforethe Chairman, Selection Committee and final selection ofthe candidates may be made on the basis of the gradings/markings given by the Members of the SelectionCommittee and the Technical Experts as mentioned above.In case, there is a ‘tie’ in the gradings in respect of anycandidate, the final decision for the selection in case of sucha candidate may rest with the Chairman of the SelectionCommittee after discussions with other Members of theSelection Committee.”(emphasis supplied)

The minutes of 18 September 1997 were approved in a meetingheld on 17 June 1998.

20. The above extract indicates that the gradings allocated by themembers of the Selection Committee and the technical experts are to beplaced before the Chairman of the Selection Committee and the finalselection 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 bemade” as recorded earlier.

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A21. The judgment of the Delhi High Court in Dr Dilip KumarParidav AIIMS (supra) holdsthat the view of the experts who are co-opted in the selection process is only advisory and that the members ofthe Standing Selection Committee of AIIMS are not bound by theiropinion:B“21. AIIMS besides being a statutory body is a specialized bodyand having provided for a constitution of a Standing SelectionCommittee, we are in agreement with the contentions on behalfof the respondent No. 5 that the role of the experts co-opted inthe section process is merely advisory and the members of theStanding Selection Committee are not bound by the opinion of theCexperts and are entitled to evaluate the applicants for the variousposts independently of the same.

23. We may mention that the experts co-opted in the selectionprocess are intended to evaluate the academic aspects of thecandidates while on the other hand the Standing SelectionDCommittee is concerned not only with the academic aspect butalso with the other parameters viz. of suitability, demeanour,adaptability etc.”

The above statement of position in the judgment of the Delhi HighCourt should not be read to suggest that the experts who are co-optedEas part of the Selection Committee have no role and that the othermembers have to decide on the selection, independently of their views.Experts are co-opted in order to ensure that the Selection Committee isbroad-based; that the selection is objective; and that the experience andknowledge of experts drawn from outside provides a valuable input inFthe ultimate decision. The policy adopted in 1997 indicates that the finalselection may be made on the basis of the grading/marking given by theMembers of the Selection Committee and the technical experts. Wherethere is a tie, the decision rests with the Chairperson, after discussionwith other members of the Selection Committee. We cannot subscribeto the contention of the petitioners that it is only a tie which can beGresolved by the Chairperson and in all other cases, the Committee isobliged to make its selection on a mathematical summation of grades.Thefact that selection ‘may be made’ (this expression being in substitutionof ‘will be made’) on the basis of the grading given by the members ofthe Selection Committee and the technical experts suggests that theHdetermination of merit is not merely a mechanical totalling of grades

allotted.The Selection Committee has to act objectively. This undoubtedlyrequires giving due credence to the view of the experts. But while doingso, it must have due regard to all relevant aspects bearing on the interestof the institution. The Selection Committee has to assess the credentialsof 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 meanthat while the views of the experts co-opted to the Selection Committeeconstitute a valuable perspective and input, they cannot be regarded asbinding. The members of the Selection Committee would have to considerthe views of the expertsand to evaluate them together with all otherrelevant circumstances.

22. In the present case, the record of the court indicates thatwhile making its recommendations for appointment to the post ofAdditional Professor, the Selection Committee had borne in mind theperformance of the candidates, their records as well as the opinion ofthe technical experts. The minutes of the meeting of 12 September2005 indicate that the views of the technical experts were considered.To re-evaluate what took place well over twelve years ago would neitherbe feasible nor appropriate. The policy decision of 1997 indicates thatthe gradings given by all the members of the Selection Committee andthe technical experts are to be placed before the Chairman of the SelectionCommittee and the final selection “may be made” on the basis of thegradings/markings given by the members of the Selection Committeeand the technical experts. The Selection Committee which wasconstituted in 2005 considered the issue of selection and inter se rankingof the selected candidates. In making its final recommendation in regardto their order of merit, upon appointment as Additional Professors, theSelection Committee had due regard to relevant matters including theperformance of the candidates, their records and the opinion of theexperts. Hence, the ranking which has been assigned cannot be regardedas being in breach of the policy decision of 1997. It would be iniquitousto unsettle the position of seniority, over twelve years after the petitionersand the Fourth respondent were selected as Additional Professors. Eventhereafter, when each of them has been promoted as a Professor, it isthe Fourth respondent who has been ranked higher than the petitioners.

23. For the above reasons, we have come to the conclusion thatthe grant of relief would unsettle the inter se seniority between thepetitioners and the Fourth respondent well over twelve years since the A

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Arecommendation of the Selection Committee for appointment asAdditional Professors. This cannot be done. Some expressions of opinionin favour of the First petitioner in the departmental processes may haveengendered a sense of hope. But that cannot furnish a legal ground tounsettle something that has held the field for long years. We close theproceedings with the expectation that these distinguished doctors willBpursue their avocations at AIIMS without rancour. Our decision onseniority is no reflection upon their distinguished service to a premiernational institution.

24. The Writ Petition shall accordingly stand dismissed. Thereshall be no order as to costs.C

Kalpana K. Tripathy

Petition dismissed.

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