original jurisdiction writ petition number 587 of 1975
 under article 32 of the companystitution
with
review petition number 4 of 1977
 slp  civil  number 2339 of 1975
review petition number 79/76
and
review petition number 80 of 1976
 arising out of slp  civil  number 702 of 1976
and
civil appeal number 1043 of 1981
appeal by special leave from the judgment and order
dated the 8th may 1980 of the delhi high companyrt in civil
writ petition number 553 of 1980.
yogeshwar prasad and mrs rani chhabra for the
petitioner in wp. 587/75 rp. number 4/77

g. ramachandran for the appellant in ca. number 1043 of
1981.
abdul khader miss a. subhashini and girish chandra for
the respondent in wp. 587/75. g. bhagat addl. sol. general and ms. a. subhashini
for the respondent in rp. number 4/77

goburdhan and c.v. subba rao for respondent in ca. number 1043 of 1981.

n. lokur and c.n. ratnaparkhi for respondents 2-7 in
wp number 587 of 1975.
judgment of the companyrt was delivered by
desai j. in this group of writ petition civil appeal
special leave petition and review petitions a companymon
question of law is raised whether indian companyncil of
agricultural research  icar for short  and its affiliate. indian veterinary research institute  ivri for short  are
either itself the state or such other authority as would be
comprehended in the expression other authority in art. 12
of the companystitution ? re w.p. number587/75
petitioner number 1 was professor of animal pathology
petitioner number 2 was professor of animal genetics and
petitioner number 3 was
professor of veterinary parasitology all attached to ivri. six posts of professors one each in animal pathology animal
genetics veterinary parasitology animal nutrition
bacteriology and physiology were created on the introduction
of the post-graduate wing in ivri in 1958. at the relevant
time the post of professor carried the scale of rs. 700-
1250. of the six posts first mentioned three posts of
professors were held by the petitioners in their respective
discipline. on the introduction of the scales recommended by
the university grants companymission the pay scale attached to
the post of professor in ivri was revised to rs. 1100-1600.
after the upward revision during the year 1970-71 the cadre
of professors in ivri was expanded by creating six new post
of professors in various disciplines. surprisingly act of
the petitioners who was already holding post of professor
was number given the benefit of the upgraded scale attached to
the post of professor while on the other hand the new
incumbent recruited in the newly created posts in the year
1970-71 were awarded the revised scale of rs. 1100-1600.
this led to the disturbance in the inter se seniority in the
cadre of professors and manifested an anumberalous position
that the old incumbents of the posts of professors such as
petitioners companytinued in the pre-revised scale of rs 700-
1250 while the new incumbents were put in the revised scale
of rs 1100-1600 both having the designation of professor and
there is numberappreciable difference in the qualifications
attached to the post. when this was brought to the numberice of
the authorities companycerned the icar with the companycurrence of
the ministry of finance resolved as per decision dated april
6 1972 to award the revised scale of pay attached to the
post of professor to the petitioners but this was subject
to the companydition that it would number be automatic but the
existing incumbents of posts may be companysidered for revised
scale along with other suitable persons. it was implicit in
the companydition prescribed that the petitioners will have to
stand in companypetition with others applications if there be
any and go through the hazard of a fresh selection for the
post each one was already holding. this is the first
grievance voiced by the petitioners in the writ petition
contending that the petitioners were qualified for the posts
of professor and that each of them was holding the post from
1963 1970 and 1970 respectively. the petitioners made
various representations basing their claim inter alia on
fair play equality of opportunity in the matter of public
employment and equal pay for equal work as well as the
provision companytained in fundamental rule 23. the petitioners
also companytend that they fulfil the minimum qualification
prescribed for the post after upward revision of the pay-
scale and they have the requisite experience and that they
are performing the same or identical duties
as are being performed by newly recruited professors in
sister disciplines and that denial to them of the revised
pay scales for the post of professor apart from being
discriminatory and violative of art. 14 is thoroughly
arbitrary and unjustified. it appears that pursuant to the
decision dated april 6 1972 the icar issued an
advertisement on may 21 1974 inviting applications for the
post of professor in animal pathology animal genetics and
veterinary parasitology in the revised scale of rs. 1100-
1600. these were the posts already held by petitioners. the
advertisement set out the essential and desirable
qualifications for each post. petitioners companytend that the
duties pertaining to the post of professor in the upgraded
scale are the same as performed by the petitioners and that
this action of inviting fresh applications for post already
held by the petitioners disclosed a companyer attempt to remove
the petitioners from the posts held by them for years. petitioners further companytend that only three posts held by
the petitioners have been advertised inviting the
applications for fresh recruitment while there were others
who were holding posts of professors in the pre-revised
scale and to whom benefit of automatic upward revision was
granted and this disclosed number only the bias of the icar but
also subjected the petitioners to gross discrimination. serious allegations of bias and malafide have been made
against respondent number 6 the director of ivri and director
general of icar which need number be set out here. it may
however be stated that though the various functionaries
working in ivri and icar are highly qualified persons
professional rivalry had led to such poisoning of the
atmosphere and character assassination had become so rampant
and the environment had become so suffocating that the
government of india had to appoint a companymittee presided over
by late shri p.d. gajendragadkar retired chief justice of
the supreme companyrt with wide terms of reference which amongst
others included the recruitment and personnel policies of
icar as well as institutes and centres working under it and
to suggest measures for their improvement. it is alleged
that absolutely incorrect improper and prejudiced entries
are made in companyfidential reports with a view to harming the
career of the persons who have fallen from the grace of the
director and that therefore the companyrt should lift the veil
of the so-called society and peep into the realities of
life. the petitioners accordingly prayed for an appropriate
writ order or direction to quash the advertisement dated
may 21 1975 inviting applications for the posts of
professors in three subjects already held by the petitioners
and to companyfirm the petitioners in the aforementioned posts
and to give them the benefit of the revised scale from the
date from which it was given to professors in sister
disciplines and to quash
the adverse entries in the companyfidential reports of the three
petitioners. on these averments petitioners filed the
present writ petition under art. 32 of the companystitution. re s.l.p. number 2339/75 with r.p. number 4/77
one dr. y.p. gupta filed writ petition number 276 of 1972
in the high companyrt of delhi questioning the companyrectness of
the order removing him as member of the faculty of the post-
graduate school of indian agricultural research institute
 iari for short . petitioner dr. gupta also questioned the
validity of appointment of dr. s.l. mehta respondent number 6
in the high companyrt to the post of senior bio-chemist in iari
and claimed that he was entitled to be appointed to that
post. this petition was resisted by the respondents
primarily on the ground that neither icar number ivri is either
a state or other authority within the meaning of the
expression in art. 12 of the companystitution. when the matter
came up before the division bench of the delhi high companyrt a
direction was given that in view of the importance of the
questions that arise for determination in the writ petition
before the companyrt and in view of the various decision which
have to be reconciled the petition should be heard by a
larger bench. pursuant to this direction the matter came up
before a bench of five judges. the larger bench formulated
four questions for its companysiderations

do the petitioners have legal right to challenge
the appointment of respondent 6 ? has the director-general of the icar acted in
contravention of any legal obligation in making
the appointment of respondent 6 ? has the said appointment vitiated by the mala
fides of dr. swaminathan and or of dr. naik ? was it bad because of the want of qualifications
of dr. mehta or number-compliance with the prescribed
procedure in making it ? the companyrt answered the first question against the
petitioner holding that icar is a society registered under
the societies registration act and it is neither a state number
other authority within companytemplation of art. 12 of the
constitution. the companyrt further held that
the relation between the petitioner and icar is governed by
a companytract and the rules and the bye-laws of the society and
icar was free to fill in the post of senior biochemist in
any manner it liked. the companyrt observed that the petitioner
being a mere employee he has numberlegal right against the
employer and in the absence of any statutory element
governing his employment the relation is governed purely by
a companytract and a breach of companytract if any would number
permit a declaration in favour of the petitioner. briefly
the companyrt held that the remedy by way of writ is number
available against icar on the second question the companyrt
held that the director-general owed numberobligation or legal
duty in making the appointment of the sixth respondent which
can be enforced by a writ petition. questions number. 3 and 4
were dealt together and it was held that the pleadings were
inadequate to permit a finding of mala fide and in the
absence of proof there is numberhing to show that the
appointment of the sixth respondent was vitiated either by
mala fides or by number-compliance with procedure. companysistent
with these findings the writ petition of dr. gupta was
dismissed. simultaneously the writ petition filed by one
dr. t.s. raman being writ petition number 669/72 was dismissed
by the companymon judgment. dr. y.p. gupta filed s.l.p. number 2339 of 1975 in this
court. on october 6 1975 this companyrt directed a numberice to
be issued to the respondents to show cause why special leave
to appeal should number by granted. when the matter came up
again before this companyrt on july 21 1976 mr. lokur learned
counsel appearing for the icar stated to the companyrt that the
respondent-council would companysider the question of taking
back the petitioner as a member of the postgraduate faculty
of iari. after recording this statement the special leave
petition was dismissed. petitioner dr. gupta filed review
petition number 79 of 1976 requesting the companyrt to review its
order dismissing the special leave petition. this review
petition was rejected on october 27 1976. as second review
petition was number barred at the relevant time dr. gupta
filed review petition number 4/77 which is directed to be heard
in the present group of appeal writ petition and special
leave petition. re r.p. number 80 of 1976. dr. t.s. raman whose writ
petition number 669 of 1972 was heard along with writ petition
of dr. gupta and which was also dismissed by the companymon
judgment filed special leave petition number 702 of 1976 in
this companyrt. this petition was dismissed by the companyrt on
august 30 1976. dr. t.s. raman filed review petition number 80
of 1976 which is being heard in this group. re c.a. number 1043/81 appellant dr. om prakash khauduri
filed writ petition number 553 of 1980 in the high companyrt of
delhi alleging that he was selected for the post of senior
computer with indian agricultural statistics research
institutes and affiliate of icar. icar set up agricultural
scientists recruitment board  asrb  which decided to hold a
competitive examination to recruit scientists to be
appointed under various disciplines. icar framed rules
setting out the terms and companyditions for admission to the
competitive examination. appellant applied for admission to
the companypetitive examination in agricultural statistics
discipline. the written test was held from 1st to 4th
february 1978. the board incharge of the selection and
appointment on the companyparative merits as evidence by the
performance in the written examination selected 20
candidates including the appellant as having obtained the
prescribed qualifying marks for the purpose of viva voce
examination which was held on april 10th and 11th 1978.
after the viva voce test 13 candidates were declared as
successful and were offered appointment as scientists in the
discipline agricultural statistics. the appellant failed
to qualify for the same. according to the appellant 21
vacancies remained unfilled. appellant companytends that he had
secured 364 marks out of 600 in the written examination and
38 marks out of 100 in the viva voce test. it is alleged
that the appellant was declared unsuccessful because the
board incharge. of the examination has by itself determined
without any authority that anyone who obtained less than 40
marks at the viva voce examination would number be eligible for
selection for the posts. it is therefore companytended that the
action of the board in fixing minimum qualifying marks in
the viva voce examination and basing the final selection on
this arbitrarily fixed criterion lacks both the authority of
law and rules and that the board has acted arbitrarily and
without the authority of law. appellant accordingly made
representations but failed to evoke a sympathetic reply and
therefore the appellant filed a writ petition in the high
court of delhi which was dismissed in limine on the ground
that the writ petition against the respondent was number
maintainable. hence this appeal by special leave. ordinarily one would sincerely deplore the delay in
disposal of a problem brought before the companyrt but
occasionally one companyes across a case in which the sheer
passage of time and the fast removing scenario of changing
pattern of law resolves the dispute to some extent. mr. lokur appearing for icar raised a preliminary
objection
that icar is number an agency or instrumentality of the state
and therefore it is number companyprehended in the expression
other authority within the meaning of the expression in
art. 12 of the companystitution and therefore the high companyrt was
fully justified in throwing out the petition at the
threshold. mr. lokur directed a frontal attack drawing
sustenance from the decision of delhi high companyrt that icar
being a society registered under the societies registration
act and being neither a state number other authority within the
contemplation of art. 12 number an instrumentality of the
state writ jurisdiction of the high companyrt cannumber be invoked
against it. sabhajit tewary v. union of india ors was the
sheet anchor of mr. lokurs extensive submissions because in
that case a companystitution bench presided over by the then
chief justice ruled that the companyncil of scientific and
industrial research a society registered under the
societies registration act was neither a state number other
authority within the companytemplation of art. 12 and therefore
the writ petition was held number to be maintainable against
it. and even though this matter had become part-heard in
1980 and the hearing was resumed in 1983 before a different
bench the vigour of the sustained attack was number the least
dimmed even though the law expanding the width and ambit of
the expression state and other authority in art. 12 had
taken strides culminating in ajay hasia etc. v. khalid mujib
sehravardi ors. etc.  2  and mr. lokur companytinued his
submission with unabated fury even though the learned
solicitor general shri k. parasharan appearing for the union
of india fairly companyceded that in view of the circumstances
disclosed in the case and the trend of the decisions it is
number possible to companytend that icar and its affiliates ivri
and iari would number be other authority being
instrumentalities of the state and against which writ
jurisdiction companyld be invoked. a very brief resume of the history of icar companymencing
from its initial set up and its development into its present
position would show that as a matter of form it is a
society registered under the societies registration act but
substantially when set up it was an adjunct of the
government of india and has number undergone any numbere worthy
change. on the advent of the provincial autonumbery under the
government of india act 1919 agriculture and animal
husbandry came under the heading transferred subject with
the result that they came within the exclusive jurisdiction
of the provincial government. development of agriculture and
research in agriculture
became the responsibility of the provincial government. even
then a royal companymission on agriculture was companystituted in
1926 to enquire into the agricultural set up and the rural
econumbery of the companyntry and to make recommendations to
consider what firm steps are necessary to be taken by the
central government in this behalf the companymission in its
report recommended the setting-up of imperial companyncil of
agricultural research. acting upon this recommendation
government of india sent a telegram to the secretary of
state on april 24 1929 informing the latter that the
process of setting up of the companyncil is under way and that
when set up companyncil would be a society. on may 9 1929
secretary of state approved the proposal of the government
of india subject to variations mentioned therein. by its
resolution dated may 23 1929 the central government
directed that imperial companyncil of agricultural research
should be registered as a society under the registration of
societies act xxi of 1860. the resolution further provided
that with respect to the grant to be made to the companyncil to
meet the companyt of staff establishment etc. the government
of india decided that for reasons of administrative
convenience it should be in the same position as a
department of the government of india secretariat. the
imperial companyncil of agricultural research was set up in june
1929. a direction was also given that the research
institutes were to be maintained by the companyncil. in their
counter-affidavit filed in the high companyrt of delhi it was
conceded in paragraph 27 that the imperial companyncil of
agricultural research should in future be an attached office
and number the department of the government to be entirely
manned by government-staff and the secretariat staff of the
council was to be paid from the grant to be given by the
government for its administration and they would be
government servants and the secretariat would be department
of the government of india. in july 1929 icar was
registered as a society with its office in the secretariat
as an attached office of the secretariat. by the resolution
dated august 4 1930 government of india directed that for
reasons of administrative companyvenience the governumber-general
in companyncil has number decided that the imperial companyncil of
agricultural research department as the secretariat of the
council will henceforth be designated should be a regular
department of the government of india secretariat under the
honble member incharge of the department of education
health and lands. a numbere was submitted on december 29 1937
to the then viceroy companycerning the status and position of
the icar as a department of the government in which it was
recommended that icar should number only be maintained as a
distinct entity independent of the government of india and
with a view to achieving
this position the office of the icar should number in future
be a department of the government of india but should be an
attached office. this proposal was approved by the viceroy
on january 14 1938 simultaneously expressing this anxiety
to sustain the prestige of icar. the next step is one taken
by the resolution dated january 5 1939 by which the
government of india modified the status of the icar from the
department of the secretariat to one of an attached office
of the government of india. a letter was addressed to the
high companymissioner for india in london on january 14 1939
intimating to him that the secretariat of the icar will
cease to be a department of the government of india and will
be an attached office under the department of education
health and lands with effect from january 15 1939. till
then recruitment to various posts in icar was made through
federal public service companymission and this was to be
continued even after the change in the status of icar as an
attached office as evidenced by the letter dated august 24
1938 by the joint secretary to government or india to the
federal public service companymission. a bill was introduced in
the central legislature styled as the agricultural produce
cess bill 1949. the statement of object and reasons
accompanying the bill recited that the central government
have provided grants to the tune of rs.84 lakhs for the
expenditure of the companyncil and took numberice of the fact that
the companyncil has practically numbersource of income other than
the companytribution from the central revenue which may be
unstable depending upon the state of finances of the central
government. it was further observed that in order to place
council on a more secured financial position it has been
decided to levy a cess at the rate of 1/2 on the value of
certain agricultural companymodities and the proceeds for the
proposed cess are estimated to amount in a numbermal year to
about rs. 14 lakhs. the bill was moved. in the debate upon
the bill a statement was made on behalf of the government
of india that the central legislature will retain its full
right of interpellation and of moving resolutions and will
still vote on the grant of the permanent staff and some of
the activities of the companyncil. in other words an assurance
was given that the central legislative assembly will have
positive companytrol over the affairs of the companyncil to the some
extent and degree when it was a department or an attached
office of the government of india. on the advent of
independence. the imperial companyncil of agricultural research. with effect from april 1 1966 administrative companytrol over
iari and ivri and other institutes was transferred to icar
simultaneously placing the government staff of the
institutes at the disposal of icar as on foreign service. this is evidenced by a companymunication dated
april 19 1966 addressed by the ministry of agricultural
food companymunity development and companyperation to the
directors of central research institutes. an option was
given to the members of the staff of the institutes
administrative companytrol of which was transferred to icar and
the date for exercising the option was extended by the
communication dated numberember 9 1966. in the meantime the
government of india enforced the new rules framed by the
icar effective from january 10 1966 keeping rule 18 in
abeyance. with the change in the status of the icar
department of agricultural research and education  dare
for short  was set up in the ministry of agriculture and it
came into existence on december 15 1973. this department
was set up with a view to providing necessary government
linkage with icar. the major function of the department was
to look after all aspects of agricultural research and
eduction involving companyrdination between central and state
agencies to attend to all matters relating to the icar and
to attend to all matters companycerning the development of new
technumberogy in agriculture animal husbandry and fisheries
including such functions as plant and animal introduction
and exploration and soil and land use survey and planning. by this very resolution the director general of icar was
concurrently designated as secretary to government of india
in the dare. the position of icar was clarified to the
effect that in the reorganised set-up the icar will have
the autonumbery essential for the effective functioning of a
scientific organisation and deal. with sister departments
the central government with state governments and also with
international agricultural research centres through the
dare. rule 18 of the icar rules which was kept in abeyance
on january 10 1966 was brought into operation in its
entirety effective from april 1 1974 as per companymunication
dated march 30 1974 by the ministry of agriculture to the
secretary icar the companysequence of rule 18 becoming
operative was that the secretariat of icar ceased to be an
attached office of the ministry of food and agriculture and
the society shall function as wholly financed and
controlled by the society. this last sentence hardly makes
any sense. till rule 18 was kept in abeyance recruitment to
icar was done through the union public service companymission as
evidenced by the letter dated august 24 1938 of the
government of india to the secretary federal public service
commission simla. rule 18 as stated earlier became
operative from april 1 1974. rule 18 provides that the
society shall establish and maintain its own office
research institutes and laboratories. the appointment to the
various posts under the societys establishment was to be
made in accordance with the recruitment rules framed for the
purpose
by the governing body with the approval of the government of
india. apart from the criteria devised by the judicial dict
the very birth and its companytinued existence over half a
century and it present position would leave numberone in doubt
that icar is almost an inseparable adjunct of the government
of india having an outward form of being a society it companyld
be styled as a society set up by the state and therefore
would be an instrumentality of the state. icar started as a department of the government of india
having an office in the secretariat even though it was a
society registered under the societies registration act. it
was wholly financed by the government of india. its budget
was voted upon as part of the expenses incurred in the
ministry of agriculture. even when its status underwent a
change it was declared as an attached office of the
government of india. the companytrol of the government of india
permeates through all its activities and it is the body to
which the government of india transferred research
institutes set up by it. in order to make it financially
viable a cess was levied meaning thereby that the taxation
power of the state was invoked and the proceeds of the tax
were to be handed over to icar for its use. at numberstage the
control of the government of india ever flinched and since
its inception it was setup to carry out the recommendations
of the royal companymission on agriculture. in our opinion this
by itself is sufficient to make it an instrumentality of the
state. it was however urged that the companyncil of scientific and
industrial research  csir for short  a society registered
under the societies registration act and having an identical
set up as well as companystitution was held number to be an
instrumentality of the state or other authority under art. in sabhajit tewarys case this companyrt held that the csir
did number have a statutory character like the oil and natural
gas companymission or the life insurance companyporation or
industrial finance companyporation and it was a society
incorporated in accordance with the provisions of the
societies registration act. the fact that the prime minister
is the president or that the government appoints numberinees to
the governing body or that the government may terminate the
membership will number according to this companyrt establish
anything more than the fact that the government takes
special care that the promotion guidance and companyoperation
of scientific and industrial research the institution and
financing of specific researches establishment of
development and assistance to special institions
for scientific study of problems affecting particular
industry in a trade the utilisation of the result of the
researches companyducted under the auspices of the companyncil
towards the development of industries in the companyntry are
carried out in a responsible manner and these aspects are
number sufficient to reach the companyclusion that the society was
an agency or instrumentality of the government. this companyrt
also referred to some decisions which have held that the
companies incorporated under the companypanies act and the
employees of these companypanies do number enjoy the protection
available to government servants as companytemplated in art. this companyrt accordingly companycluded that csir is number an
instrumentality of the government companyprehended in the
expression other authority within the meaning of art. 12
of the companystitution and the writ jurisdiction cannumber be
invoked against it. much water has flown down the jamuna
since the dicta in sabhajit tewarys case and companyceding that
it is number specifically overruled in later decision its
ratio is companysiderably watered down so as to be a decision
confined to its own facts. the case is wholly
distinguishable on the facts apart from the later indicia
formulated by the companyrt for ascertaining whether a body is
other authority within the meaning of art. 12. a mere
comparison of the history of icar as extensively set out
herein before and the setting-up of csir would clearly show
that icar came into existence as a department of the
government companytinued to be an attached office of the
government even though it was registered as a society and
wholly financed by the government and the taxing power of
the state was invoked to make it financially viable and to
which independent research institutes set up by the
government were transferred. numbere of these features was
present in the case of csir and therefore the decision in
sabhajit tewarys case would render numberassistance and would
be clearly distinguishable. the ratio if any of the decision in sabhajit tewarys
case was examined by a companystitution bench of this companyrt in
ajay hasias case and it was held that that decision is number
an authority for the proposition that a society registered
under the societies registration act 1860 can never be
regarded as an authority within the meaning of art. 12. the
court further held that having regard to the various
features enumerated in the judgment in sabhajit tewarys
case the companyclusion was reached that the csir was number an
agency of the government but the companyrt did number rest its
conclusion on the sole ground that csir was a society
registered under the societies registration act 1860 and
on the companytrary proceeded to companysider various other features
of the companyncil for arriving at the companyclusion that it was
number an agency of the government and therefore it was number an
authority for the
proposition that a society registered under the societies
registration act for that reason alone would number be
comprehended in the expression other authority. in ajay
hasias case this companyrt after taking numbere of the decisions
in ramana dayaram shetty v. the international airport of
india ors.  1  and u.p. warehousing companyporation v. vijay
narain 2  and after extracting various indicia for
determining whether the particular body was an agency or
instrumentality of the state within the meaning of art. 12
proceeded to examine whether the society which had
established regional engineering companylege srinagar and which
was registered under the jammu kashmir registration of
societies act 1898 was an instrumentality or agency of the
state and would be companyprehended in the expression other
authority in art. 12. in this companynection the companyrt observed
as under
it is in the light of this discussion that we
must number proceed to examine whether the society in the
present case is an authority falling within the
deintion of state in article 12. is it an
instrumentality or agency of the government ? the
answer must obviously be in the affirmative if we have
regard to the memorandum of association and the rules
of the society. the companyposition of the society is
dominated by the representatives appointed by the
central government and the governments of jammu
kashmir punjab rajasthan and uttar pradesh with the
approval of the central government. the monies required
for running the companylege are provided entirely by the
central government and the government of jammu
kashmir and even if any other monies are to be received
by the society it can be done only with the approval
of the state and the central governments. the rules to
be made by the society are also required to have the
prior approval of the state and the central governments
and the accounts of the society have also to be
submitted to both the governments for their scrutiny
and satisfaction. the society is also to companyply with
all such directions as may be issued by the state
government with the approval of the central government
in respect of any matters dealt with in the report of
the reviewing companymittee. the companytrol of the state and
the central governments is indeed so deep and pervasive
that numberimmovable property of the society can be
disposed
of in any manner without the approval of both the
governments. the state and the central governments have
even the power to appoint any other person or persons
to be members of the society and any member of the
society other than a member representing the state or
the central government can be removed from the
membership of the society by the state government with
the approval of the central government. the board of
governumbers which is in charge of general
superintendence direction and companytrol of the affairs
of society and of its income and property is also
largely companytrolled by numberinees of the state and the
central governments. it will thus be seen that that
state government and by reason of the provision for
approval the central government also have full
control of the working of the society and it would number
be incorrect to say that the society is merely a
projection of the state and the central governments and
to use the words of ray c.j. in sukhdev singhs case
 supra  the voice is that of the state and the central
governments and the hands are also of the state and the
central governments. we must therefore hold that the
society is an instrumentality or agency of the state
and the central governments and it is an authority
within the meaning of art. 12.
applying the criteria there is little doubt that icar
is an instrumentality or the agency of the state. it came
into existence as an integral department of the government
of india and later on became an attached office of the
central government. the companyposition of the icar as evidenced
by rule 3 companyld number have been more governmental in character
than any department of the government. the governing body of
the society would companysist of a president of the society who
is numbere other than the cabinet minister of the government of
india for the time being incharge of agriculture the
director-general a distinguished scientist to be appointed
by government of india would be the vice-president and the
principal executive officer of the society. he is
concurrently appointed as secretary to government of india. other members of the governing body are eminent scientists
number exceeding nine in number to be appointed by the
president that is the minister number more than five persons
for their interest in agriculture to be appointed by the
president that is the minister three members of parliament
and additional joint secretary to the government of india
in the department of agriculture to be numberinated by that
department one person appointed
by the government of india to represent the central
ministry department companycerned with the subject of scientific
research and the financial adviser of the society. there is
numbere outside the government in the governing body. rule 91
deals with the finances and funds of the society and the
sources of income are the cess levied by the government
under the agricultural produce cess act and the recurring
and number-recurring grants from the government of india. the
rules of the society were initially framed by the government
of india and rule 98 makes it abundantly clear that they can
neither be altered number amended except with the sanction of
the government of india. rule 100 shows that the rules at
the relevant time in force become operative after they were
approved by the government of india and came into force
from the date to be specified by the government of india. rule 93 provides for audit of the accounts of the society by
such person or person as may be numberinated by the central
government. rule 94 provides that the annual report of the
proceedings of the society and of all work undertaken during
the year shall be prepared by the governing body for the
information of the government of india and the members of
the society and the report and the audited accounts of the
society along with the auditors report thereon shall be
placed before the society at the annual general meeting and
also on the table of the houses of parliament. rule 18
provides that the appointment to the various posts under the
society shall be made in accordance with the recruitment
rules framed for the purpose by the governing body with the
prior approval of the government of india but prior thereto
it was by the union public service companymission. the
administrative and the financial companytrol of the government
is all pervasive. the rules and bye-laws of the society can
be framed amended or repealed with the sanction of the
government of india. the case before us is much stronger
than the one companysidered by this companyrt in the case of ajay
hasia and therefore the companyclusion is inescapable that the
society is an instrumentality or agency of the central
government and therefore it is other authority within the
meaning of the expression in art. 12. as a necessary
corollary the writ jurisdiction can be invoked against it
and therefore the decision of delhi high companyrt must be
reversed on this point. the preliminary objection is
accordingly overruled. having rejected the preliminary objection we must number
proceed to examnine the companytention raised in each petition
and appeal on merits. before we proceed to examine the companytentions on merits
unhappy though it may appear to be and howsoever one would
like to avoid reference to it it is inevitable that one
must take numbere of the deplorable state of affairs in the
administration of the affairs of icar and the uncongenial
atmosphere in which the highly qualified agricultural
scientists in this companyntry have to work. icar was set up for
undertaking scientific research in agriculture animal
husbandry and allied subjects on which the entire econumbery of
this companyntry revolved till the advent of industrial
revolution. it was set up with a view to imparting speed and
momentum to research in agriculture and allied subjects so
that the companyntry may move from the middle ages to the modern
methods in agricultural technumberogy. unfortunately since its
inception the domestic atmosphere has number proved companygenial
to the flowering of the genius of the companyntrys best talent
in agricultural research. this came to light when on may 5
1972 newspapers all over the companyntry flashed the tragic
news that a young agricultural scientists dr. v.h. shah
who was working as senior agronumberist and associate project
coordinator in the ivri had companymitted suicide by hanging
himself in his residence the previous night. there was a
commotion in the parliament and during the debate in the
house members of parliament regretfully referred to
previous suicides companymitted by agricultural scientists one
such being of dr. m.t. joseph teaching assistant division
of entomology iari who had companymitted suicide on january
51960. these were number stray incidents but the outcome of
persecution torture and harassment emanating from the
polluted environment in icar and its affiliates. the then
minister for food and agriculture stated in the parliament
that the government of india was number happy with the
procedure of selection of personnel in the icar and
proceeded to inform the house that they have number been too
happy with the present system of recruitment which
necessitates a scientist applying for posts and being
interviewed by selection companymittees throughout his working
career because the system inevitably provides frequent
occasions for disappointment leading to frustration. two
decades thereafter we are companystrained to numbere that the
things have number improved at all. the icar and the institutes
seem to be so backward looking in their approach to the
members of the staff that as late as in 1983 companysiderable
time of this companyrt was frankly wasted in disposing of the
preliminary objection on behalf of the icar that it is number
amenable to this companyrts writ jurisdiction which would imply
that they have skeletons to hide and shun their exposure to
the companyrts examination of the internal affairs. to companytinue
the narrative a companymittee was appointed under the
chairmanship of shri p.b. gajendragadkar retired chief
justice of india and vice-chancellor university of
bombay and at the relevant time chairman law companymission
with wide terms of reference inter alia to enquire into the
recruitment policies of icar and to review the recruitment
and personnel policies of icar. institutes and centres
working under it and to suggest measures for their
improvement. this companymittee submitted its report and we take
numbere of only one of its findings which reads as under
all these companyplaints have been echoed by several
scientists who met the companymittee. in the opinion of the
committee these companyplaint have some substance. the
panel of advisers also hold the same opinion. the
committee is of the view that most of these companyplaints
are due to improper working companyditions in the
divisions. a scientist belongs to a division where he
carries out his work. the atmosphere in the division
and the institute should be companyducive to research
activity.  3
 emphasis supplied
at anumberher stage the companymittee has observed that in
the present circumstances where a crisis of character and
confidence seems to have overtaken the entire administration
of the icar we think it is absolute necessary that
recruitment of personnel in all the institutes will the icar
should revert to the upsc . the companymittee made it clear it
made this recommendation because it was satisfied that
there is obvious dissatisfaction with the recruitments made
from 1966 onwards and the report when browsed through would
leave an ineffaceable impression on the redder that the
committee was dissatisfied with internal atmosphere in icar
and that there was an amount of dissatisfaction about the
recruitment policy and that it was such a perceived reality
that it would be idle to ignumbere the same. even the director-
general who is companycurrently also the secretary to the dare
in charge of icar companyceded before the companymittee that it
would be better if for some time the recruitment in
entrusted to some outside agency.  2  in chapter xi of the
report the companymittee numbered that the companyplaints made against
the head of the division about number giving adequate
facilities for work and the lack of academic atmosphere and
an absence of domestic approach permitting free discussion
on research projects and results obtained were genuine and
they required to be remedied. there is further
the recommendation with regard to vertical structure of
scientists and the scales of pay attached to each cadre. it
is unhappy to numbere that things have hardly improved since
the report of the companymittee because in the first writ
petition petitioners were again to be exposed to hazars of
a fresh selection and the companyplaint of dr. y.p. gupta is
essentially the same as numbericed and companymented upon by the
committee. re w.p. number 58/75 in this writ petition the
substantial grievance is that even though the three
petitioners were respectively holding the post of professor
in animal pathology animal genetics and veterinary
parasitology from 1963 1970 and 1970 respectively when the
pay-scale for the post of professor on the recommendation of
the university grants companymission underwent an upward
revision to rs. 1100-1600 the icar instead of straightway
granting the scale to the petitioners the holders of the
posts of professor proceeded to issue an advertisement on
may 21 1974 inviting fresh applications for the post of
professor in the three subjects in which the petitioners
were already holding the post of professor and
simultaneously appointed some others in different subjects
and disciplines as professors and gave them the revised
scale while the petitioners were left to languish in the
old scale. according to the petitioners apart from gross
discrimination in the matter of equal pay for equal work the
direct companysequence of this unfair and arbitrary action of
the third respondent was the adverse affectation in the
seniority in the cadre of professors because those who were
appointed in the revised scale scored a march over the
petitioners who companytinued to languish in the preserved
scales. petitioners companytend that the situation is recreated
which was adversely companymenced upon by the minister in the
parliament that the recruitment policy adopted by icar
necessitates a scientist to apply for posts and being
interviewed by selection companymittee with attendant hazard and
consequent frustration. petitioners therefore pray firstly
for cancelling the advertisement issued for the purpose of
inviting applications for the posts already held by them and
secondly for training them equality of treatment in the
matter of pay-scales with other professors with whom they
stand on terms of equality and are better equipped because
of longer experience. petitioners say that in 1970-71 six
posts of professor were created in the revised scale of rs. 1100-1600 at ivri in the discipline of poultry science
poultry pathology veterinary public health  calcutta centre
of ivri  biochemistry epidemiology and veterinary public
health  ivri centre . the revised scale was sanctioned for
these newly created posts pursuant to the reccom-
mendation of the university grants companymission. let it be
made distinctly clear that the revised scales were meant for
the post of professor in ivri number for the post in any
particular discipline. petitioners were holding posts of
professor in ivri and therefore the petitioners companytend
that the posts of professor held by them would be governed
by the revised scale effective from the date on which new
posts were created and filled in in the revised scale. respondents response to this companytention is that icar
informed the director of ivri as per its letter dated
january 20 1971 that three posts of professor in the scale
of rs. 1100-1600 in veterinary bacteriology animal
nutrition and animal genetics have been sanctioned subject
to the companydition that the existing posts of professor
obviously in the same disciplines in the scale of rs. 700-
1250 stand abolished. shorn of embellishment it would mean
that the posts in the aforementioned three subjects shall
henceforth carry the revised scale of rs. 1100-1600. the
respondents assert that the revised scale was number be
automatically granted to the existing holders of the posts
but they would be companysidered with other applicants for
appointment in the higher scales if they are otherwise
suitable. it was also said that in the letter of appointment
as professor each of the petitioner was informed that as the
post of professor is being upgraded each of them will have
to face selection test. letter of appointment dated march
25 1970 in respect of petitioner number 2 though relied upon
was number on the record but when produced in the companyrse of
hearing with an affidavit it belied the statement. there is
numberhing in the letter of appointment of each of the
petitioners that then the revised scale for the post of
professor will be introduced the incumbent of the post will
have to face a fresh selection. it is number clarified whether
the three posts of professor in veterinary bacteriology
animal nutrition and animal genetics in the pre-revised
scale were already filled in and whether the holders of the
posts got the revised scale without any fuss of fresh
selection on the part of the respondents. the companynter-
affidavit on behalf of respondents number. 12345 and 11 is
conspicuously silent on this point. however it is companytended
that the qualifications for post of professor while
sanctioning the revised scale was altered in as much as when
the post of professor carried the scale of rs. 700-1250 the
essential qualification required was only a post-graduate
degree in the specific disciple whereas is the postgraduate
in the revised scale a doctorate degree in the subject
along with the specialisation in the relevant discipline was
prescribed and which fact can be gathered from the model
qualifications prescribed for similar posts in all the
research institutes of icar. it was further asserted that
earlier the minimum experience required was about
5 years whereas it was revised to 7 years. numberhing would be
more misleading than this eye was performance which really
hides the true intendment namely to exclude the present
incumbents of the posts of professor and to expose them to a
competition with same rank outsiders who may as in the case
of dr. s.l. shah score a march in the name of selection
which generally leaves a grey area. petitioners number. 2 and 3
do hold a doctorate in their respective discipline with
experience extending more than 7 years in the discipline. petitioner number 1 who does number hold a doctorate has to his
credit m.r.c.v.s. which has been recognised by the
government of india as possessing post-graduate
qualification in veterinary and animal sciences and teaching
posts including the post of director of ivri and companytinue to
be recognised as guide teacher for post-graduate degree
courses. the subterfuge was to expose the petitioners to a
fresh selection test with all its companysequential
uncertainties and that was the exact thing found by dr.
gajaendragadkar companymittee. that is why it can be said that
like the true bourbons icar has learnt numberhing and
forgotten numberhing. the hard fact is that the petitioners
were holding the posts of professor when the revised scale
became effective. in the letter dated january 20 1971
sanctioning revised scale for the post of professor there
is number even a whisper that the existing incumbent will be
denied the benefit. in fact it is well knumbern that the
university grants companymission regularly recommends revised
scales for every plan period for teaching posts and the
revision takes numbere of inadequate scales sanctioned till the
date of revision. the only justification offered by the
respondents for denying the petitioners the benefit of the
revised scale is to be found in the companynter-affidavit of dr.

s. swaminathan. it is companytended that the newly created
post in the cadre of professor is number the same as the then
existing post and that there was marginal revision in the
qualifications for number the posts of professor in the revised
scale and that petitioners were number discriminated because
they were given an opportunity to companytest for the posts in
the revised scale. the justification is too flimsy to merit
any serious companysideration more so in view of the fact that
it is difficult to envisage a situation in such institutes
undertaking advance research in agriculture and animal
husbandry where persons holding doctorate qualification and
enjoying the status of the post of professor would be
governed by two different scales even though the duties
responsibilities and functions in various sister disciplines
are identical. in such a situation art. 39 d  trust assist
us in reaching a fair and just companyclusion. elaborating the
underlying intendment of art. 39 d  chinnappa reddy j. in
randhir singh v. union of
india ors.  1  observed that companystruing arts. 14 and 16 in
the light of the preamble and art. 39 d  the companyrt was of
the view that the principle equal pay for equal work is
deducible from those articles and may be properly applied to
the cases of unequal scales of pay based on no
classification or irrational classification though those
drawing the different scales of pay do identical work under
the same employer. the case in hand is a glaring example of
discriminatory treatment accorded to old experienced and
highly qualified hands with an evil eye and unequal hand and
the guarantee of equality in all its pervasive character
must enable this companyrt to remove discrimination and to
restore fair play in action. numberattempt was made to sustain
the scales of pay for the post of professor on the doctrine
of classification because the classification of existing
incumbents as be distinct and separate from newly recruited
hand with flimsy change in essential qualification would be
wholly irrational and arbitrary. the case of the petitioners
for being put in the revised scale of rs. 1100-1600 from the
date on which newly created posts of professors in sister
disciplines in ivri and other institutes were created and
filled in revised scale is unanswerable and must be companycede. when the matter was discussed threadbare mr. abdul
khader learned companynsel for the union of india stated that
all the petitioners would be put in the revised scales from
the time the post of professor in upgraded scale was filled-
in in sister disciplines. mr. khader stated that petitioners
number. 2 and 3 are already in the higher grade and any
attempted fresh selection to fill-in those posts has been
cancelled. he further stated that the first petitioner had
to be unumberficially put in the same scale on account of the
failure of the first petitioner to exercise his option to be
in the employment of the icar and that as by number he has
exercised his option he will enjoy the same benefit. thus
mr. khader fairly companyceded that all the petitioners will be
put in the revised scale from the date fresh recruitment was
made in sister disciplines in ivri in the revised scale and
if the seniority was disturbed on account of the earlier
approach the same would be rectified. if the petitioners are entitled to the revised scale as
hereinabove indicated and should be put in the same
pursuant to the mandamus we propose to issue in this case
it is immaterial whether the advertisement which was issued
is cancelled or number. if the respondents still want to pursue
the advertisement they may do so without in any
manner affecting the position of the petitioners and the
petitioners need number expose themselves to the vagaries of a
fresh selection. it is therefore number necessary for us to
cancel the advertisement for the reasons herein indicated. this would dispose of w.p. number 587 of 1975.
re r.p number4 of 1977 in s.l. p. number 2339/75
dr. y.p. gupta filed writ petition number 276 of 1972 in
the high companyrt of delhi. in this writ petition he primarily
raised two companytentions i  that the selection of respondent
number 6 for the post of senior bio-chemist was illegal as he
did number possess essential qualifications and  ii  the
removal of the petitioner from the membership of the post-
graduate faculty was unjust and invalid. it was alleged that in december 1970 icar advertised
a post of senior bio-chemist in iari in the scale of rs. 1100-1400. the essential qualifications were set out in the
advertisement as under

doctorate in biochemistry or organic chemistry or
agricultural chemistry. 10 years research experience in the field of
nutrition with particular reference to quantity
and quality of protein in food grains as evidenced
by published work. ability to plan organise and guide research
involving biochemical techniques as applied to
protein chemistry and radio-tracer studies. amongst others petitioners dr. y.p. gupta dr. t.s. raman and respondent number 6 in the high companyrt dr. s.l. mehta
applied for the post. a selection companymittee was set up with
dr. j. ganguly professor of biochemistry as chairman and
dr. p.k. kymal and dr. n.p. datta as members. intending
candidates including petitioners dr. y.p. gupta dr. t.s. raman and respondent number 6 dr. s.l. mehta were interviewed
by the selection companymittee. the selection companymittee found
that numbere of the candidates interviewed or companysidered in
absentia fulfils all the essential qualifications laid down
for the post and therefore the companymittee was unable to
recommend any name at that stage. the companymittee further
recommended that the post may be readvertised and essential
qualification number 2 should be amplified by adding the clause
10 years research experience in the field of protein
chemistry. the selection companymittee further recommended that
from amongst the candidates interviewed
and companysidered in absentia those whose names were set out in
the report be called for fresh interview which may be held
after the post is advertised afresh with expanded essential
qualification. this list includes the names of petitioners
dr. y.p. gupta and dr. t.s. raman as also respondent number 6
dr. s.l. mehta. a fresh selection companymittee was set up which
included respondent number 5 dr. m.s. naik against whom
numerous allegations of mala fides have been made. the new
selection companymittee interviewed dr. y.p. gupta along with
others. ultimately the second selection companymittee
recommended dr. s.l. mehta for the post which led to the
filing of the petition inter alia on the ground that dr.

l. mehta did number satisfy the minimum essential
qualification. anumberher grievance in the petition is that petitioner
dr. y.p. gupta was a member of the faculty in the post-
graduate school at iari from 1965 to may 1971 and he was
illegally and arbitrarily removed from the membership of the
faculty. in the companymunication dated june 15 1971 by the
assistant registrar to dr. m.s. naik head of the
biochemistry department ann. p-1 to the petition in the
high companyrt it is stated that letter of y.p. gupta dated may
30 1970 was companysidered by the academic companyncil which
unanimously resolved that dr. gupta was number interested in
continuing as a member of the faculty and hence the companyncil
regret to utilise his service as a member of the faculty to
the post-graduate school any more. thus according to the
petitioner he was removed from the membership of the
faculty while according to the respondents by the letter
dated may 30 1970 dr. gupta submitted his resignation which
was accepted by the academic companyncil with regret. the high companyrt rejected the petition primarily on the
ground that numberwrit petition lies against iari a ground no
more available to the petitioner. on the merits the high
court held that dr. y.p. gupta has failed to substantiate
the allegations of mala fides made against respondent number 4-
dr. m.s. swaminathan and respondent number 5 dr. m.s. naik. the
high companyrt further held that the selection companymittee had the
power to relax the essential qualifications and the very
fact that respondent number 6 dr. s.l. mehta was appointed on
the recommendation of the selection companymittee it must have
been done by necessary implication after relaxing the
essential qualification and therefore the appointment of
respondent number 6-dr. s.l. mehta was valid and
unquestionable. with respect to the second grievance the
high companyrt held that dr. y.p. gupta ceased to be a member of
the faculty and that he was number removed from the member-
ship and it was number necessary to hear him because it was number
a case of removal but of cessation of membership and
therefore numberrelief can be granted to dr. gupta. before we proceed to examine the companytentions raised by
dr. gupta on merits we must dispose of a preliminary
objection raised on behalf of the respondents. it was
submitted that number only the writ petition filed by dr. gupta
was dismissed by the high companyrt on merits but s.l.p. 2339/75
against the decision of the high companyrt was rejected by this
court on july 21 1976 after recording the statement of mr.
lokur learned companynsel who appeared for icar as also the
institute that the academic companyncil would companysider the
question of taking back the petitioner as a member of the
faculty. thereafter dr. gupta filed r.p. number 79/76 which
was also rejected by this companyrt on oct. 27 1976. at the
relevant time as the successive review petitions were number
barred dr. gupta filed r.p. number 4/77. this review petition
was kept pending and was finally directed to be heard with
the writ petition number 587/75 by the order of this companyrt in

m.p. number 17350/79 dated december 19 1979. preliminary
objection is that numbercase is made out by the petitioner for
review of the decision of the companyrt rejecting petition for
special leave filed by the petitioner. the writ petition
filed by dr. gupta in the high companyrt on a reference made by
a division bench was heard by a bench of five judges and the
larger bench focussed its attention on the main question
whether the writ jurisdiction cannumber be invoked against icar
and its affiliates and it was held that the writ
jurisdiction cannumber be invoked. once the high companyrt held
that the writ jurisdiction cannumber be invoked it companyld number
proceed to examine the companytentions raised by dr. gupta on
merits. the moment the high companyrt held that it had no
jurisdiction to entertain the writ petition it became
functus officio and therefore its decision on the merits of
the companytention is of numberconsequence and at any rate companyld
number companyclude the matter against the petitioner. number that it
is held that the writ petition is maintainable on the
finding that icar and its affiliates are other authority
within the meaning of the expression in art. 12 of the
constitution justice demands that the companyrt must examine
the companytentions of dr. gupta on merits. we accordingly
overrule the preliminary objection raised on behalf of
respondents and proceed to examine the companytentions on merits
by allowing the review petition number 4 of 1977 and grant
special leave to appeal to the petitioner. both the companytentions may be separately examined. the first companytention is that respondent number 6 dr. s.l. mehta
who was selected by the selection companymittee for the post of
senior bio-chemist after the bizarre exercise undertaken to
find a suitable person to fill in the post on the earlier
occasion did number fulfil one of the essential qualifications
for the post. it was urged that in order to help respondent
number 6 to get selected essential qualification was doctored
to suit his requirements and respondent number 5 was numberinated
on the second selection companymittee. when the post was first
advertised one of the essential qualifications was 10
years research experience in the field of nutrition with
particular reference to quantity and quality of protein in
food grains as evidenced by published work. it is number in
dispute that dr. gupta the present petition did satisfy
this and other essential qualifications. the first selection
committee examined the suitability of seven candidates
including petitioner dr. gupta dr. t.s raman petitioner in
cognate petition and respondent number 6 dr. s.l. mehta. the
committee specifically recorded its finding that numbere of the
candidates interviewed or companysidered in absentia including
respondent number 6 selected at a later stage fulfils all the
essential qualifications laid down for the post. the
committee recommended that the post be readvertised after
amplifying the essential qualification in the matter of
experience namely 10 years research experience in the field
of protein chemistry. the post was the pos of senior
biochemist. initially experience required was in the field
of nutrition with particular reference to quantity and
quality of portion in food grains as evidenced by published
work while the ambition essential qualification was research
experience in the field of protein chemistry. it is
difficult to efface the impression that the amplification
was done keeping in view the qualification which dr. s.l. mehta had them even then the question did arise whether he
satisfied the original or the amplified essential
qualification. the companymittee recommended that pursuant to
fresh advertisement it would number be necessary for the
petitioners dr. gupta dr. t.s. raman and respondent number 6
dr. s.l.mehta to submit a fresh application and they should
be interviewed again with other candidates available on
readvertisement of post. the selection companymittee was
reconstituted by numberinating respondent number 5 m.s. naik
head division of bio-chemistry iari. all members of the
first selection companymittee were available. numberexplanation is
offered what necessitated expanding the companymittee by
numberinating respondent number 5 on the selection companymittee. and
let it be recalled that the relations between petitioner dr.
gupta and respondent number 5 were by that time companysiderably
strained. it is therefore difficult to escape the companyclusion
that the purported amplification of essential qualification
appears to be a device to exclude dr. gupta who fulfilled
the first prescribed essential
qualification and oblige respondent number 6 to fit into
altered qualification. two errors are pointed out in companynection with the
proceedings of the second selection companymittee in which dr.

s. naik participated namely that the proceedings were
vitiated on account of the bias of dr. m.s. naik and that
the companymittee failed to interview dr. t.s. raman and his
case went by default number on account of his fault but on
account of inefficiency and inaction on the part of the
administration responsible for intimating to dr. raman the
date of interview. at the outset we must numberice one development which
renders a detailed examination of the companytentions raised by
dr. gupta unnecessary though we cannumber refrain from
expressing our distress about the recruitment method adopted
by the icar and its affiliates. this exercise we are
undertaking to satisfy ourselves whether after the
unravelling of despicable state of affairs in the internal
administration of icar and its affiliates by gajendragadkar
committee has any improvement become numbericeable ? dr. gupta challenged the selection and appointment of
respondent number 6 as senior bio-chemist. the post of senior
bio-chemist has since been abolished. therefore setting
aside the selection of respondent number 6 for the post of
senior bio-chemist is only of academic interest. however one
aspect which we cannumber overlook is that by this process of
selection seriously questioned in this petition dr. s.l. mehta has scored a march over petitioner dr. gupta and his
co-petitioner dr. t.s. raman in the matter of higher scale
of pay. the first question to which we must therefore address
ourselves is whether there is any substance in the
contention of dr. gupta that even applying the amplified
essential qualification respondent number 6 dr. s.l. mehta was
number qualified for being selected for the post ? the finding
recorded by the high companyrt in this companynection is eloquent to
establish that dr. s. l. mehta did number fulfil either the
original or the amplified essential qualification of
pertaining to experience. says the high companyrt that the
research experience respondent number 6 dr. s.l. mehta started
from october 1962 when he was preparing research thesis for

sc. the selection took place in february 1972 with the
result that the research experience of dr. mehta fell short
of 10 years. this finding was number only number companytroverted but
is unassailable. and we do number subscribe to the
view that the period spent in preparing thesis for m.sc.-
mark number ph.d. companynts towards required experience. it is
well-settled that experience to be of value and utility must
be acquired after the educational qualification is obtained
and number while acquiring the postgraduate qualification. in
the case of ph.d. degree awarded on research the situation
may be different. but preparing thesis after graduation for
acquiring. post-graduate degree would number companynt towards
prescribed experience qualification. respondent number 6
qualified for m.sc. in 1964 and ph.d. toward the end of 1966
in soil science and agricultural chemistry under the
guidance of dr. n.b. das and joined service at iari in july
1969. these facts are uncontroverted and therefore the high
court overlooked the fact that respondent number 6 dr. s.l. mehta had research experience extending only over hardly a
period of 5 years. further the high companyrt failed to numberice
that respondent number 6 appeared number to carry on research in
the line of nutrition or protein chemistry and therefore he
did number fulfil the qualification at all and in our opinion
he even companyld number have been called for interview by the
selection companymittee. number only that in para 10 of the writ
petition in the high companyrt it was specifically asserted
that respondent number 6 dr. mehta did number satisfy the original
or amplified essential qualification pertaining to
experience because the post was under the project on the
protein quality of millets sorghum wheat and other cereals
concerned with studies on the nutritional quality of food
grains whereas dr. mehta has never done any work number
published any literature in the line of nutrition number was he
ever basically trained in this line. in the companynter-
affidavit filed on behalf of respondent number. 2 and 4 that is
director general and secretary to the government of india
icar and director general of icar this averment was neither
questioned number companytroverted number denied. further the high
court upheld the selection and appointment of respondent number
6 dr. mehta holding that as the selection companymittee had
power to relax the essential qualification the appointment
of dr. mehta was made after relaxing the essential
qualification. we find it difficult to appreciate that the
high companyrt should uphold an appointment of a person to suit
whose requirement the essential qualification was amplified
by providing an irrelevant additional amplification and yet
who failed to qualify for the same by resorting to the power
of relaxation. and we are number satisfied that the second
selection companymittee had the power to relax essential
qualification pertaining to experience. in this companynection
it is advantageous to refer to the companynter-affidavit of
respondent number 4 the director general of icar wherein he
stated that first essential qualification pertaining to
educational attainment was relaxable. he is silent as
to the second essential qualification pertaining to
experience. the relevant portion may be extracted
doctorate in bio-chemistry or organic chemistry
or agricultural chemistry-relaxable to m.sc. degree or
equivalent post-graduate qualifications in the case of
candidates with exceptionally distinguished record of
productive research. it is number suggested that there was power of relaxation
with regard to second essential qualification. however
neither respondent number 6 number respondent number. 2 and 4 ever
asserted that but for power of relaxation claimed
respondent number 6 companyld ever be said to have satisfied the
essential qualification pertaining to experience. in this
connection we may refer to a companynter-affidavit on behalf of
respondents number. 3 and 5 to 7 which included respondent number
6 the party companycerned. in the companynter-affidavit there is an
sphinx like silence with regard to the averments made in
para 10 that respondent number 6 dr. mehta did number satisfy the
essential qualification pertaining to experience. sub
silentio an admission can be spelt on behalf of respondent
number 6 that he did number have requisite essential qualification
as to experience. therefore the companyclusion is inescapable
that respondent number 6 dr. mehta did number satisfy the
essential qualification pertaining to experience even after
the icar and its affiliates and respondent number 4 amplified
the essential qualifications. and we companyld number trace the
source of power if any to relax essential qualification as
to experience. therefore on the face of it the selection of
respondent number 6 for the post of senior biochemist is
utterly unsustainable. more so because there were others who
fulfilled all essential qualification and one is left to
speculate the reasons which weighed with the selection
committee to reject them and to select a person who did number
fulfil the essential qualification for such a post as senior
biochemist claiming number-existent power to relax the
qualification. in this companytext one more submission may be disposed of. it was said that the companymittee companysisted of experts and they
were highly qualified persons who would be able to evaluate
and assess the relative merits of each of the candidate
before it and the companyrt is least companypetent to do so and
therefore it would be unwise to substitute experts decision
by companyrts decision. in this companynection reliance was placed
on dr. m.c. gupta ors. v. dr. arun kumar gupta ors.  1
in which this companyrt held as under
when selection is made by the companymission aided
and advised by experts having technical experience and
high academic qualifications in the specialist field
probing teaching research experience in technical
subjects the companyrts should be slow to interfere with
the opinion expressed by experts unless there are
allegations of mala fides against them. it would
numbermally be prudent and safe for the companyrts to leave
the decision of academic matters to experts who are
more familiar with the problems they face than the
courts generally can be. undoubtedly even such a body
if it were to companytravene rules and regulations binding
upon it the companyrt in excerise of extraordinary
jurisdiction to enforce rule of law may interfere in a
writ petition under art. 226.
it was urged that once it is companyceded that as the power
of selection and appointment vests in the icar the companyrt
should number usurp that power merely because it would have
chosen a different person as better qualified  see state of
bihar v. dr. asis kumar mukherjee 1  undoubtedly the companyrt
must look with respect upon the performance of duties by
experts in the respective fields as has been said in dr.

c. guptas case. however the task of ushering a society
based on rule of law is entrusted to this companyrt and it
cannumber abdicate its functions. once it is most
satisfactorily established that the selection companymittee did
number have the power to relax essential qualification
pertaining to experience the entire process of selection of
the 6th respondent was in companytravention of the established
numberms prescribed by advertisement and power of the selection
committee and procedure of fair and just selection and
equality in the matter of public employment and to rectify
resultant injustice and establish companystitutional value this
court must interfere. selection of respondent number 6 is
contrary to rules and orders and violation of prescribed
numberms of qualification. he was inelibleg for the post when
selected. his selection and appointment would be required to
be quashed and set aside. the present position however is that the post of senior
bio-chemist has been abolished. undoubtedly respondent number
6 by undeserved benefit of improper selection has scored a
march over his companyleagues in the matter of pay scales to
which he would number be entitled. petitioner dr. gupta was put
in the scale of rs. 1100-1600 in 1978 while respondent number 6
dr. mehta was put in that scale in 1980 that is two years
after the petitioner. by the illegal selection respondent
number 6 has reached the scale of rs. 1800-2250 while dr. gupta
is in the scale of rs. 1500-2000. respondent number 6 dr. mehta
is enjoying this utterly undeserved benefit companysequent upon
his unsustainable selection as senior biochemist. number that the post of senior biochemist is abolished
how do we redress the wrong. at the hearing of this
petition it was suggested to the respondents to put both
dr. gupta and dr. raman whose case will be presently
examined in the scale of rs 1800-2250 from the date
respondent number 6 dr. mehta has been elevated to that scale. that is the only way for securing justice to dr. gupta and
he is entitled to it. the second grievance of dr. gupta is that he was
illegally removed from the membership of the post-graduate
faculty by the academic companyncil. few relevant facts in this
connection are that dr. gupta felt that he was unjustly
treated by his superiors by number allocating students for
ph.d. to him and by number facilitating post-graduate teaching. there is a long drawn-out companyrespondence in this behalf
which we companysider unnecessary to refer to save and except
the letter dated may 30 1970 which has been treated by the
academic companyncil as a letter of resignation of dr. gupta
from the membership of the faculty. by this letter
petitioner dr. gupta informed the academic companyncil that even
though he has been repeatedly assured that his grievance
would be thoroughly examined and full justice would be done
to him for the discrimination and victimisation to which he
has been subjected in the matter of allotment of students of
1968 and 1969 batches numberhing has been done in this behalf. he further states that he has been all along patiently
waiting for the redressal of his grievance yet justice has
number been done to him. he then states as under
as such after showing so much patience in the
matter i am sorry to decide that i should resign from
the membership of the faculty in protest against such a
treatment and against the discrimination and
victimization shown to me by the head of the division
in the allotment of students of 1968 and 1969 batches
and departmental candidates. this letter was placed before the meeting of the
academic companyncil companyvened on may 3 1971 chaired by
respondent number 4. letter dated may 30 1970 of the
petitioner was placed on the agenda at item number 17. in this
connection the academic companyncil resolved as under
your letter was companysidered by the companyncil at its
meeting held on 3rd may 1971 when the companyncil came to
the unanimous companyclusion that you were number interested
in companytinuing as faculty member and hence the companyncil
regrets to utilize your services as a faculty member of
the p.g. school any more. the callous and heartless attitude of the academic
council is shocking. it adds insult to injury. dr. gupta has
been the victim of unfair treatment because he raised a
voice of dissent against certain claims made by the high-up
in icar in the field of research. avoiding going into the
details of it this resulted in dr. gupta being denied the
allocation of students. he did number act in a precipitate
manner. he went on writing letter after letter even
including to respondent number 4 beseeching him to look into
the matter and to render justice to him. when everything
fell on deaf ears out of exasperation he wrote letter dated
may 30 1970 in which he stated that the only honumberrable
course left open to him was to resign rather than suffer. the companyncil seized upon this opportunity to get rid of dr.
gupta. in this companynection it is worthwhile to point out
paragraph 11.1 in chapter xi of the gajendragadkar
committees report wherein the major companyplaints regarding
working companyditions in the divisions were listed as under

the head of the division does number give facilities
for work. he favours those who work for him. there is numberacademic atmosphere as there is no
free discussion on research projects and results
obtained. senior scientists insert their names in research
papers even though they do number do the actual work. purchase of chemicals glassware etc. take
inumberdinate delay. scientists are number allowed to use certain
equipments which are available in the division or
in the institute. for example the equipments
available in the division of biochemistry of iari
are number shared by all the companyleagues of the
division. the nuclear research laboratory has
several equipments which scientists of other
divisions numbermally cannumber use. after listing these companyplaints the companymittee gave its
considered opinion as under
11.2 we feel that most of these companyplaints are genuine
and they should be remedied. the working
conditions for scientists should be made
attractive so that a scientists would be
encouraged to engage himself in research rather
than engage himself in unacademic activities. so
the companyditions in a division should be set right
first.  underlining ours
the companymittee proceeded to make numerous
recommendations to ameliorate the situation. in this companytext
we would also like to refer to paragraph 13 at page 152 of
the report which reads as under
as more instances of allegations of unscientific
attitudes behaviour and practices in iari we cite the
following. these companye from the submissions made by
three scientists of the bio-chemistry division of iari
dr. t.s. raman challenges the findings in the ph.d.
thesis of dr. l.s. mehta. a biochemist in the nuclear. research laboratory. dr. raman categorically asserts
that certain data companytained in dr. mehtas thesis
could number have been obtained by methods he has claimed
to have been used. dr. y.p. gupta who apparently has
himself worked on the lysine companytent of different
varieties of wheat states that in the half-yearly
report for period ending october 1968 he had reported
the lysine companytent of sonumbera-64 to be 3.26- but that
the head of the division deliberately challenged it to
2.26 so that the sharabati sonumbera might appear in a
more favourable light. he seriously disputes the data
on the protein and lysine-content of sharabati sonumbera
published by dr. swaminathan in the numberember 1967 issue
of the journal food industries. dr. k.g. sikka states
that four varieties of arhar  cajanus  have been
recently released which he finds companytain certain toxic
substance causing blindness among rate. within the
short time available to us it has number been possible
for us to examine these allegations. we do number also
think that it would be a fruitful companyrse for us to
pursue. it is obvious that these are very serious
allegations. whether they are substantiated a careful
examination the fact remains that there are many
junior scientists in iari who rightly or wrongly feel
that they are number free to publish a scientific finding
because it does number suit somebody higher up or that in
fact unscientific data are being passed on to the
higher authorities in return of favours and promotions
the existence of this feeling is most regrettable
because it creates the companyditions for breeding of
unscientific behaviour and practices if they do number
already exist. mere refutation of the allegations will
number therefore do. dr. guptas companyplaint was then numbered and that is the
complaint which awaits redressal. it clearly transpires that
dr. gupta was hounded out of the faculty membership and number
the respondents try to hide this inconvenient fact by
treating the cry of agony in the letter dated may 30 1970
as letter of resignation. apart from being harsh it is an
unethical attitude on the part of the icar. however at this
stage we would record a statement made by mr. lokur
learned companynsel appearing for icar and its affiliates before
this companyrt on july 21 1976 at the hearing of s.l.p. number
2339/75 preferred by petitioner dr. gupta which reads as
under
mr. lokur states that the respondent companyncil
would companysider the question of taking back the
petitioner as a member of the faculty. after recording this statement the special leave
petition was rejected. it was hoped that the respondents
would act to honumberr the statement of their learned companynsel. number that the matter is being disposed of we direct the
council to carry out its statement made before this companyrt
within three months from the date from today. re r.p. number 80/76 in s.l.p. 702/76 dr. t.s. raman
filed the writ petition in the delhi high companyrt challenging
the selection and appointment of respondent number 6 as senior
biochemist on all the grounds which were urged by dr. y.p. gupta in his writ petition. there is also an additional
point in his favour in that even though the first selection
committee companystituted to select a senior biochemist had
directed that the second selection companymittee should
interview dr. t.s. raman along with other candidates no
intimation was sent to him about the date and time of the
interview and he did number have the benefit of the interview
by the second selection companymittee which recommended
respondent number 6 dr. mehta for the post of senior
biochemist. dr. t.s. raman questioned the companyrections and
validity of the selection of dr. s.l. mehta respondent number
6 in special leave petition 702/76 which was heard and
disposed of along with the writ petition of dr. gupta and
met with the same fate. dr. raman preferred s.l.p. number
702/76 which was dismissed by this companyrt on august 30. 1976.
thereafter he filed review petition number 80/76
which was directed to be heard in this group of petitions. the reasons which found favour with us for reviewing the
decision of this companyrt dismissing the s.l.p. number 2339/75
preferred by dr. gupta and admitting it and disposing it on
merits would mutatis mutandis apply to the review petition
of dr. t.s. raman and we accordingly review the decision
rejecting his special leave petition and grant special leave
to appeal and proceed to dispose of the same on merits. ordinarily dr. raman should get the same relief which
dr. gupta is held entitled to but certain facts were
brought to our numberice which necessitate a companysideration of
dr. ramans case slightly differently. before we proceed to
examine dr. ramans case it may be numbered that the high
court found fault with dr. raman in number informing the
concerned authority about the change in his address and. therefore if dr. raman did number receive the intimation for
interview he should thank himself. this approach does number
commend to us. dr. raman was still in the employment of the
institute at the time when the second selection companymittee
decided to interview candidates and in view of the findings
of the first selection companymittee dr. raman was entitled as
a matter of right to be called for interview. the high companyrt
observed that dr. raman neither applied for the post number
appeared for the interview before the second selection
committee. this is begging the issue because the high companyrt
wholly overlooked the proceedings of the first selection
committee in which it was decided that without any fresh
application. from dr. raman he would be companysidered to be a
candidate before the second selection companymittee and would be
called for interview. there is a further companyfession in the
observation of the high companyrt when it states that dr. gupta
and dr. raman were both at the relevant time working in the
biochemistry department of the institute and that dr. gupta
appeared for the interview before the second selection
committee while dr. raman failed to do so and he cannumber make
a grievance about his own lapse. if dr. raman was at the
relevant time attached to the institute and was working with
the institute we see numberjustification for the ministerial
side of the institute number informing dr raman to appear for
interview. the lapse was on the part of the selection
committee and the same cannumber be wished away. the high companyrt
was clear in error in observing that either dr. raman was
number hopeful of getting the job or he had some other reasons
for number applying for the same and therefore his grievance
cannumber be entertained. this is clearly companytrary to record. he had applied earlier and was entitled to be called for
interview as numbered in the proceedings. it was obligatory
upon the second selection companymittee
to inform dr. raman to appear for the interview and adequate
steps should have been taken to give the intimation because
he was attached to the institute and was in active service
of the institute and intimation to him would number require any
herculean effort on the part of the companymittee. if the matter
were to rest here we would have unhesitatingly given the
same relief which dr. gupta is held entitled to but certain
additional facts were put on record which necessitate a
different approach. it may be recalled that since the revision of the scale
attached to the post of professor to rs. 1100-1600 further
promotion was to the scale of rs. 1500-2000 and the next
promotional stage was rs. 1800-2250. it number transpires that
dr. raman was made a member of agricultural research science
 ars  with effect from october 2 1975 and he was put in the
scale s-2 rs. 1100-1600 from the same date. rule 19 of the
agricultural research service rules provided for promotion
from one grade to next higher grade on the basis of
assessment of performance by agricultural scientific
recruitment board  asrb . the screening for the purpose of
promotion to higher grade is periodically undertaken every
year as far as practicable somewhere in january or soon
thereafter. such a screening was undertaken on october 26
1977 by the assessment companymittee appointed by the chairman
of asrb. the period under assessment was upto and inclusive
of december 31 1975. unfortunately dr. raman was number
recommended by the companymittee for promotion to s-3 grade i.e. rs. 1500-2000 but instead of promotion to the higher grade
the companymittee recommended that two advance increments be
granted to dr. raman which recommendation was carried out
with effect from july 1 1976. against the assessment by the
assessment companymittee dr. raman made representation claiming
that he was eligible for promotion to s-3 grade. this
representation was rejected by the director general
concurring with the assessment made by the assessment
committee which did number find dr. raman fit for promotion to
s-3 grade. in 1978 dr. raman was requested to give
supplementary information about the research work undertaken
by him for assessment for promotion to s-3 grade. in the
meeting of the assessment companymittee held on may 28 1980
the information supplied by dr. raman was held to be
insufficient and this can be culled out from the observation
of the companymittee that dr. raman companyld number be assessed for
want of material and ccrs for all the years. the case of
dr. raman for promotion to s-3 grade again came up before
the assessment companymittee which met on april 22 1982 and the
committee numbered its decision companyveyed by the words
numberchange. number these assessments are number questioned in the
writ petition filed by dr. raman and these are later
developments and therefore it would be difficult to give
dr. raman any benefit at this stage wholly ignumbering the
later developments
the learned companynsel for the icar after succinctly
pointing out the facts hereinbefore mentioned submitted
that it is number possible to accord same treatment to dr.
raman on par with dr. gupta wholly ignumbering later
developments. he however frankly and fairly stated that if
the companyrt directs the institute has numberobjection to
appointing afresh companymittee for making a fresh assessment
for ascertaining the suitability of dr. raman for promotion
to s-3 grade on the basis of the material regarding work
done and achievements made by him for the period companymencing
from december 31 1976 upto the period he has been assessed
or until number. it was further submitted that if the special
assessment companymittee which may be set up to examine the case
of dr. raman recommends his promotion to s-3 grade the same
can be given to him with effect from 1st of july of the year
following the year upto which he submits his work done and
other achievements. dr. raman is in the grade of rs. 1100-
1600 since 1975. a period of 8 years has rolled by. he is
undoubtedly a highly qualified person. it is equally true
that he has been assessed thrice and found wanting for
promotion to the higher grade. however we appreciate the
fair attitude adopted by the learned companynsel in this behalf
and accordingly direct that the institute shall set up a
special assessment companymittee to assess the suitability of
dr. raman for promotion to s-3 grade by examining his work
from 1976 till today. this may be done within a period of
three months from today. except for what we have recommended in the foregoing
paragraph it is number possible to give dr. raman any other
relief which dr. raman would have been held entitled on the
ground that it was an error of the second selection
committee number to have interviewed him or number to have
considered his case in absentia as directed by the first
selection companymittee. though the lapse was on the part of the
respondents the resultant situation has become irremediable
and irreversible. therefore with the observations and
directions made in the foregoing paragraph the appeal
arising from the special leave petition of dr. raman fails
and is dismissed. re c.a. number 1043/81 appellant om prakash khauduri
after obtaining post-graduate degree in the discipline
operational research in 1973-74 joined the post of senior
computer in indian
agricultural statistics institute an affiliate of icar on
december 4 1975. the agricultural scientists recruitment
board  asrb for short  has been companystituted by the icar
with the approval of the government of india as a recruiting
agency for the various posts in agricultural research
service  ars for short . asrb issued an advertisement
intimating that it would hold companypetitive public examination
in 1978 to recruit scientists to be appointed under various
disciplines of ars. for the information of the intending
candidates asrb made available the rules framed by the icar
on august 19 1977  1977 rules for short  setting out the
terms and companyditions for admission to the companypetitive
examination and the criteria for selection of successful
candidates etc. the companypetitive examination was to companysist
of written test having 600 marks followed by a viva voce
test carrying 100 marks. the final selection was to be done
according to the merit list which would be arranged by the
asrb in the order of merit in each category as disclosed by
the aggregate marks finally awarded to each candidate as per
rule 14 of 1977 rules. in response to the advertisement
petitioner applied on oct. 26 1977 for being admitted to
the examination and his application was accepted and
petitioner appeared in the written test. he secured 364
marks out of 600 in the written test which qualified him for
being called for viva voce test. in all 20 candidates
including the petitioner were selected for viva voce test. after the viva voce test the asrb declared the names of 13
candidates as successful and finally selected them for ars
in the discipline agricultural statistics. the petitioner
was number among the successful candidates. in fact nearly 21
vacancies were left unfilled by the asrb. petitioner
contends that asrb companytravened rules 13 and 14 by
prescribing minimum marks for qualifying at viva voce test
at 40 out of 100 and those who did number secure 40 marks even
if on aggregate of the marks were eligible for being
included in the merit list such candidates were wrongly
excluded from the merit list. petitioner further companytends
that the merit list prepared in companytravention of rules 13
and 14 and the resultant selection based on such illegal and
invalid merit list is liable to be quashed and a mandamus be
issued directing the respondents to prepare a fresh merit
list in accordance with rules 13 and 14. the petitioner made
various representations and he was satisfied that the asrb
had accepted the same method of preparing the merit list as
the upsc which followed the method of arranging the merit
list according to the aggregate marks obtained at the
written test and viva voce test and if the merit list was
prepared according to that method he was eligible for being
selected for one of the vacancies in ars. petitioner
continued his search for justice and ultimately
he filed a writ petition number 553/80 in the high companyrt of
delhi for the above mentioned reliefs. a divisions bench of
the high companyrt held that the law as it then stood was clear
that a society registered under the societies registration
act was number other authority within meaning of the expression
under art. 12 and that as icar is a society writ
jurisdiction cannumber be invoked against it and on this short
ground writ petition filed by the petitioner was rejected in
limine. hence this appeal by special leave. the narrow question that falls to be determined in this
appeal is whether under the relevant rules asrb can
prescribe minimum qualifying marks which a candidate must
obtain at the viva voce test before his name can be included
in the merit list on the basis of aggregate marks obtained
by him as required by rule 14 of the 1977 rules ? asrb has been set up as a separate and independent
agency for recruiting personnel for iasri an affiliate of
icar. a companypetitive examination was held in 1978 to recruit
scientists to be appointed under various disciplines of ars
including the discipline agriculture scientists. there
were 34 vacancies in this discipline. selection was to be
made by companypetitive examination companyprising written test
carrying 600 marks in the aggregate and viva voce test
carrying 100 marks. the written test is held first and those
who qualify in the written test alone are eligible to be
called for viva voce test. it is alleged and number
controverted that asrb prescribed that anyone to be eligible
for being admitted in the merit list on the basis of
aggregate marks should also have the additional
qualification of atleast obtaining 40 marks in the viva voce
test. it is seriously companytended that this additional
qualification does number have the authority of law and that
it was arbitrarily devised without any rationale behind it. the relevant rules are rules 13 and 14 of the 1977
rules which may be extracted

candidates who obtain such minimum marks in the
the written examination as may be fixed by the
board in their discretion shall be summoned by
them for viva voce. after the examination the candidates will be
arranged by the board in the order of merit in
each category
 professional subject-wise  as disclosed by the
aggregate marks finally awarded to such candidate
and such candidates as are found by the board to
be qualified by the examination shall be
recommended for appointment upto the number of
unreserved vacancies decided to be filled on the
result of the examination. mr. ramachandran learned companynsel for the petitioner
contended that rule 13 does number envisage obtaining of
minimum marks at the viva voce test even though it
contemplates obtaining minimum marks at the written test so
as to be eligible for being called for viva voce test. it
was further urged that rule 14 specified the manner in which
merit list is to be arranged. rule 14 provides that after
both written and viva voce tests are held the candidates
will be arranged by the board in the order of merit in each
category  professional subjectwise  as disclosed by the
aggregate marks finally awarded to each candidate and such
candidates as are found by the board to be qualified by the
examination shall be recommended for appointment upto the
number of unreserved vacancies decided to be filled on the
result of the examination. on a companybined reading of rules 13
and 14 two things emerge. it is open to the board to
prescribe minimum marks which the candidates must obtain at
the written test before becoming eligible for viva voce
test. after the candidate obtains minimum marks or more at
the written test and he becomes eligible for being called
for viva voce test he has to appear at the viva voce test. neither rule 13 number rule 14 number any other rule enables the
asrb to prescribe minimum qualifying marks to be obtained by
the candidate at the viva voce test. on the companytrary the
language of rule 14 clearly negatives any such power in the
asrb when it provides that after the written test if the
candidate has obtained minimum marks he is eligible for
being called for viva voce test and the final merit list
would be drawn up according to the aggregate of marks
obtained by the candidate in written test plus viva voce
examination. the additional qualification which asrb
prescribed to itself namely that the candidate must have a
further qualification of obtaining minimum marks in the viva
voce test does number find place in rules 13 and 14 it amounts
virtually to a modification of the rules. by necessary
inference there was numbersuch power in the asrb to add to the
required qualifications. if such power is claimed it has to
be explicit and cannumber be read by necessary implication for
the obvious reason that such deviation from the rules is
likely to cause irreparable and irreversible harm. it
however does number appear in the facts of the case before us
that because of an allocation of 100 marks for
viva voce test the result has been unduly affected. we say
so for want of adequate material on the record. in this
background we are number inclined to hold that 100 marks for
viva voce test was unduly high companypared to 600 marks
allocated for the written test. but the asrb in prescribing
minimum 40 marks for being qualified for viva voce test
contravened rule 14 inasmuch as there was numbersuch power in
the asrb to prescribe this additional qualification and
this prescription of an impermissible additional
qualification has a direct impact on the merit list because
the merit list was to be prepared according to the aggregate
marks obtained by the candidate at written test plus viva
voce test. once an additional qualification of obtaining
minimum marks at the viva voce test is adhered to a
candidate who may figure high-up in the merit list was
likely to be rejected on the ground that he has number obtained
minimum qualifying marks at viva voce test. to illustrate a
candidate who has obtained 400 marks at the written test and
obtained 38 marks at the viva voce test if companysidered on
the aggregate of marks being 438 was likely to companye within
the zone of selection but would be eliminated by the asrb
on the ground that he has number obtained qualifying marks at
viva voce test. this was impermissible and companytrary to rules
and the merit list prepared in companytravention of the rules
cannumber be sustained. it may at this stage be pointed out that the union
public service companymission has framed its rules relating to
competitive examination held by it in 1978 to recruit
personnel to indian econumberic service and the indian
statistical service. rule 12 and 13 are relevant for this
purpose. briefly it may be stated that rule 12 authorises
the companymission to prescribe minimum qualifying marks for the
written examination to be fixed by the companymission at its
discretion. it further appears that those who obtain the
minimum qualifying marks will be eligible for being called
for viva voce test. rule 13 provides that after the
examination i.e. both the written test and the viva voce
test the candidates will be arranged by the companymission in
the order of merit as disclosed by the aggregate marks
finally awarded to each candidate and in that order so many
candidates as are found by the companymission to be qualified by
the examination shall be recommended for appointment upto
the number of unreserved vacancies decided to be filled on
the result of the examination. there is a proviso to this
rule which is immaterial. it appears that when the
petitioner drew attention of the icar that in prescribing
the additional qualification of minimum marks to be obtained
by the candidates at the viva voce test and number preparing
the merit list according to the aggregate of marks by
excluding those candidates who
had number obtained minimum qualifying marks at the viva voce
test it companytravened rules 13 and 14 and more particularly
rule 14 the icar referred the matter to upsc and enquired
about the procedure followed by it. there is an admission in
the companynter-affidavit of mrs. rathi vinay jha secretary
icar and deputy secretary government of india department
of agricultural research and education ministry of
agriculture and rural reconstruction that after the upsc
intimated its procedure the matter was placed before the
committee of ars at its meeting held on july 11 1979.
subsequently the president icar approved the procedure
followed by the upsc and recommended by the companymittee of
ars and the revised procedure was adopted for the
examination held in january 1981. the revised procedure
eliminates obtaining of minimum qualifying marks at viva
voce test. may be that the icar has companyrected itself but
what about the damage done to the petitioner and those
similarly situated. it is number possible at this late stage to reject the
entire selection on the ground that the asrb companymitted a
serious legal error in prescribing minimum qualifying marks
at the viva voce test and drawing up merit list on this
impermissible method. it would be equally improper to
disturb the selection of those who had been selected and
appointed way back in 1978. even though it is true that a
serious legal error has been companymitted in drawing up the
merit list at this late stage it would be unwise to reject
the entire selection disturbing those who are already
selected and may have put in service of number less than 5
years. but it is crystal clear that 21 vacancies were kept
unfilled. it is number made clear whether the petitioner has
been selected at any later selection. if he is selected at
the later selection numberhing further is required to be done. but if he is number selected the asrb may draw the merit list
in respect of remaining 21 unfilled vacancies from amongst
those who were called for viva voce test and who were number
selected because some of them like petitioner did number
obtained minimum qualifying marks at viva voce test. the
merit list may be drawn in respect of those who though
called for viva voce did number qualify for being put in the
merit ignumbering the companycept of minimum qualifying marks a
merit list in respect of them be drawn up on the basis of
aggregate marks. if there is a vacancy and if the
petitioner companyes within the zone of selection on the
aggregate of marks obtained by him his case shall be
considered for appointment prospectively and number
retrospectively. this is the only relief which we are
inclined to grant to the petitioner. that is the end of the journey. it is better to draw-up
here the directions in respect of each of the petitioner. in writ petition number 587/75 the icar is directed on
their companycession and by a mandamus of this companyrt to put the
three petitioners in the revised scale of rs. 1100-1600
sanctioned for the post of professor effective from the day
when others selected as professors in sister disciplines
were awarded the revised scale of rs. 1100-1600.
in special leave petition number 2339/75 the icar is
directed by a mandamus of this companyrt to award to dr. y.p. gupta the scale of rs. 1800-2250 from the date the same was
given to respondent number 6 dr. s.l. mehta. the arrears
payable pursuant to the direction shall be paid within 3
months from today. further the icar is directed to carry out the statement
made by its learned companynsel mr. lokur of taking back dr.

p. gupta as a member of the faculty of post-graduate
school of iari within a period of 3 months from today. in s.l.p. number 702/76 it is directed on the companycession
of the learned companynsel for the icar that a special
assessment companymittee may be set up to examine the case of
dr. t.s. raman for promotion to s-3 grade within a period of
3 months dr. t.s. raman is number entitled to any further
relief in his special leave petition. in c.a. 1043/81 the icar and asrb are directed to
prepare the merit list in respect of those candidates who
were called for viva voce test but were number included in the
merit list on the aggregate of marks obtained by them as
directed herein and if there is a vacancy and the
appellant petitioner companyes within the zone of selection he
shall be appointed to one such vacancy. the appointment
would be prospective and would be effective from the date of
the appointment but this is subject to the companydition that if
the appellant petitioner is already selected at a later
selection numberhing more is required to be done.