2025 INSC 201 Page 1 of 29

REPORTABL E

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO S.301–303 OF 2025

[ARISING OUT OF SLP (C) NO S.20360-20362 OF 2024]

DR. AMARAGOUDA L PATIL … APPELLANT

Versus

UNION OF INDIA & ORS . … RESPONDENTS

J U D G M E N T

DIPANKAR DATTA, J.

1. A manifestly flawed process of selection, which was rightly interdicted

by the writ court, has since been reversed by the writ appellate court

premised on a fundamentally incorrect understanding of the Government

of India (Allocation of Business) Rules, 1961

1

framed under Article 77 of

the Constitution of India and an utterly mistaken notion of the scope of

interference in matters relating to selection and appointment. It has,

thus, not surprised us at all that Mr. Vikramjeet Banerjee, learned

Additional Solicitor General, representing the first respondent-Union of

India

2

and the second respondent-Search Committee, and Mr. Devashish

1

Business Rules

2

UoI

Page 2 of 29

Bharuka, learned senior counsel appearing for the third respondent,

have made little effort to sustain the selection of the third respondent

with reference to and/or relying on the said appellate judgment. Instead,

the effort has been more towards sustaining the selection and

appointment of the third respondent by highlighting the limited scope of

judicial review in matters where the experts in the relevant field are the

selectors and the process of selection is conducted by them. Much of this

later, while we deal with their contentions.

2. The present lis concerns appointment to the high office of ‘Chairperson’

of the National Commission for Homeopathy

3

.

3. Facts giving rise to these three appeals from the appellate judgment and

order of the Division Bench of the High Court of Karnataka

4

, which are

undisputed, lie in a narrow compass.

I. The National Commission for Homeopathy Act , 2020

5

is an

enactment of recent origin. Section 4(1) of the NCH Act ordains

that the Commission shall be comprised of a Chairperson, seven

ex-officio Members and nineteen part-time Members. Section 4(2)

specifically mandates that the Chairperson of the Commission shall

be a person of outstanding ability, proven administrative capacity

and integrity, possessing a postgraduate degree in Homoeopathy

from a recognised University and having experience of not less than

twenty years in the field of Homoeopathy, out of which at least ten

3

Commission

4

High Court

5

NCH Act

Page 3 of 29

years shall be as a leader in the area of healthcare delivery, growth

and development of Homoeopathy or its education (emphasis

supplied by us). The Explanation to Section 4 defines the term

“leader” as the Head of a Department or the Head of an

Organisation (emphasis supplied by us). Section 5, inter alia,

prescribes that the Central Government shall appoint the

Chairperson on the basis of the recommendation of a Search

Committee consisting of the Cabinet Secretary as the Chairperson

[clause (a)], three expert members to be nominated by the Central

Government [having qualifications as described in clauses (b) and

(c)], a nominee of the Central Government [having qualifications

as described in clause (d)] and the Secretary to the Government of

India

6

, in charge of AYUSH to be the convenor -member [clause

(e)].

II. Vide Notification F. No. 21011/12/2020-EP(III) dated January 16,

2021, the Ministry of AYUSH invited applications for the post of

Chairperson of the Commission. Inter alia, the Notification while

indicating the eligibility criteria provided that the applicant must

have not less than 20 years of experience in the field of

Homeopathy, out of which at least 10 years as the Head of the

Department or Head of an Organisation in the area of Health Care

delivery, growth and development of Homeopathy or its education.

6

GoI

Page 4 of 29

This was entirely in consonance with the relevant statute and all

concerned understood what the requirements were.

III. Responding to this notification, 37 (thirty-seven) aspirants applied

for appointment to the office of the Chairman. The appellant and

the third respondent, who was serving as the Director General,

Central Council for Research in Homeopathy

7

were two of the

several aspirants.

IV. For a ready reference, the profile of the third respondent is

reproduced hereinbelow:

Office/Institution

/Organisation

Post Held From To

CCRH Research Assistant 07.09.1987 21.12.1995

CCRH Assistant Research

Officer

22.12.1995 01.01.1996

CCRH Research Officer 01.01.1996 07.05.2008

CCRH Assistant Director May 2008 June 2014

CCRH Deputy Director

(Tech.)

10.06.2014 27.12.2016

CCRH Deputy Director

General

28.01.2016 13.09.2020

CCRH Director General 14.09.2020 Till the Date of

Application

7

CCRH

Page 5 of 29

V. The Search Committee, constituted for selection and appointment

of the Chairperson of the Commission, upon scrutiny of the

applications received from the several aspirants in response to the

Notification dated January 16, 2021, resolved in its meeting held

on May 7, 2021 to recommend a panel of three aspirants in order

of merit. In such panel, the third respondent figured at the top.

VI. The recommendation was accepted and after seeking the requisite

approvals, the Central Government vide Notification No. S.O.

2694(E) dated July 5, 2021 constituted the Commission in

purported compliance with the provisions of the NCH Act and, inter

alia, conveyed the appointment of the third respondent as the first

Chairperson of the Commission.

VII. The third respondent accepted the appointment and commenced a

new innings of his life as Chairperson of the Commission. Since the

term of his appointment is for 4 (four) years, the appellant is due

to demit office on July 4, 2025.

VIII. Aggrieved by the selection and appointment of the third respondent

as Chairman as well as his non-appointment in such office, the

appellant preferred a writ petition

8

before the High Court. The

primary and the sole ground of challenge to such appointment was

that the third respondent, despite not satisfying the eligibility

criteria, came to be selected and appointed. According to the

appellant, the third respondent lacked the requisite experience of

8

W.P. No. 15859/2021

Page 6 of 29

working for 10 (ten) years as a ‘leader’ in terms of the Explanation

to Section 4 of the NCH Act and, therefore, could not have entered

the zone of consideration.

4. The Single Judge of the High Court, vide judgment and order dated

January 10, 2024, accepted the contention of the appellant and held that

the third respondent “did not possess the requisite experience as a

‘leader’ and therefore, his appointment as the Chairperson cannot be

accepted as being in conformity with the provisions of the statutes”. The

appointment of the third respondent was, accordingly, quashed.

However, the Single Judge did not accept the contention of the appellant

that he was eligible and meritorious and hence a direction should be

issued to appoint him. It was reasoned that once an appointment is

found to be illegal, all that the Court can do is to direct the Search

Committee to re-do the process of appointment as per the statutory

procedure. While allowing the writ petition, the Single Judge directed the

Central Government to take necessary action to appoint a Chairperson

of the Commission afresh, in the manner prescribed by the statute and

also keeping in mind the observations made regarding the eligibility of

the candidates vis-à-vis the meaning of the word ‘leader’.

5. Aggrieved, the UoI and the third respondent carried the said judgment

and order in separate appeals. The appellant filed a cross-objection

challenging that part of the order of the Single Judge by which his

contention, as noticed above, was rejected.

Page 7 of 29

6. The Division Bench, vide judgment and order dated July 31, 2024

overturned, the decision of the Single Judge and allowed the intra-court

appeals. It was, inter alia, held by the Division Bench that:

“20. The workflow of the AYUSH Department, Government of India

(Allocation of Business Rules, 1961) provides for organizational set up.

The same is reflected at Page No.433 of the appeal. As per the

Allocation of Business Rules, the Assistant Director is h aving

independent control over the particular division. When the

organizational set up does not provide for a head of the department,

it is for the Court to examine whether a particular post would be head

of that division. On consideration of the organizational set up in that

view, Assistant Director though below the rank of Director General,

the work and responsibilities entrusted to the Assistant Director are

independent.

21. The Search Committee having examined the qualification and

eligibility found that the different positions held by the appellant would

be in the capacity of the head of the department. It is not open to the

Court to substitute its opinion unless mala fides are being

demonstrated in the process of selection. … ”

7. Consequently, the appeals of the UoI and the third respondent were

allowed and the cross-objection dismissed. By presenting these three

appeals, the said judgment and order has been called in question by the

appellant.

8. Noticing the observations made in the judgment rendered by the Single

Judge, to nullify the selection of the third respondent, we had called upon

Mr. Banerjee to place before us the relevant file pertaining to the

selection in question in a sealed cover.

9. The file, which was placed, reveals that the third respondent had not

submitted supporting documents to support his claim of possessing the

requisite experience. The Search Committee after considering the

application of the third respondent had, thus, remarked that it was “not

clear” whether the third respondent possesses experience of 10 (ten)

Page 8 of 29

years as ‘Head of a Department’ or ‘Head of an Organisation’. It was also

observed that the third respondent “may be eligible subject to

submission and Verification of documents of experience as Head of

Department from Competent Authority, cadre clearance & Certification

of not having Major/Minor Penalties.”

10. While perusing the file, we came across a Departmental Order

9

of the

Secretary to the Government of India

10

, Ministry of AYUSH, dated May

6, 2021. The second and final paragraph of the letter reads as follows:

“In this regard, I have got the matter examined in the Ministry of

Ayush and after verifying the documents of experience, it is confirmed

that Dr. Anil Khurana, DG, CCRH is having the requisite experience of

10 years equivalent to Head of Department. He, therefore, fulfils the

eligibility requirements for the post in terms of the provisions of the

Act.”

(emphasis supplied by us)

11. Since we could not trace in the file the precise ‘documents of experience’

which the Secretary, GoI in the aforesaid letter claimed to have verified,

Mr. Banerjee was requested to throw light on it. He expressed regret

having not been provided access to the file since the officers of the

Ministry felt that it was directly to be placed before the Court in a sealed

cover. However, at the same time, he submitted (upon receiving

instructions from the officers present in Court) that the ‘documents of

experience’, if not in the file, could lie somewhere else in a separate file.

Assuring that such documents would also be placed before the Court, Mr.

Banerjee added a caveat that access to the file and the other documents

to be produced may not be allowed to counsel for the appellant.

9

D.O.

10

Secretary, GoI

Page 9 of 29

12. Having proceeded to hear the parties, we closed arguments and while

reserving judgment on January 23, 2025, we required the officers of the

UoI, who were present in Court , to produce the ‘documents of

experience’ referred to in the D.O. of the Secretary, GoI.

13. Next morning, a sealed envelope was handed over to the Court Master

for being placed before us. Such envelope had the handwritten

inscription “Documents of Experience” as well as reference to these

appeals. We record having devoted sufficient attention to all the papers

in the file as well as the bunch of documents in the sealed envelope

which, of course, on the ground of confidentiality claimed by Mr.

Banerjee, was not given access to Mr. Kamath, learned senior counsel

for the appellant. However, nothing much turns on such non-accessibility

since, the reasons to follow would demonstrate how the selection

process suffers from gross illegality and, thus, has to fall through for

serious breach of the statutory requirements, thereby supporting what

we have said at the beginning of this judgment.

14. We have recorded above, what was the initial reaction of the members

of the Search Committee. Had it been a clean and clear case where the

members had no reason to object to the candidature of the third

respondent, the present exercise need not have been undertaken ,

thereby yielding no difference in the outcome of the selection process.

15. At the outset, we cannot but express our dismay at the manner of

appreciation of the organizational set up of CCRH

11

by the writ appellate

11

reproduced at the end of the judgment.

Page 10 of 29

court and construing it to be part of the Business Rules. The page bearing

the organizational set up of CCRH admittedly was part of the CCRH’s

Annual Report of 2012-2013. Neither Mr. Banerjee nor Mr. Bharuka has

attempted to justify the appellate judgment with reference to the

Business Rules and, in fact, submitted that the Division Bench proceeded

on a mistaken notion. We do not see it as a mistake, but as a blunder;

and, for reasons of propriety, say no more.

16. We would assume, as submitted by Mr. Banerjee, that while issuing the

D.O., the Secretary, GoI (who himself was a member of the Search

Committee) must have looked into the ‘documents of experience’ and

what the same recorded must have weighed with the Chairperson and

the members of the Search Committee to ultimately hold the third

respondent eligible in all respects. However, two aspects appear to be

truly striking. We may, at once, say that although in normal

circumstances the first aspect of discussion might not have made a

significant impact, it becomes relevant and the situation does call for a

little deliberation in light of the initial observations made by the Search

Committee regarding qualifications of the third respondent.

17. What has struck us, on perusal of the minutes of the meeting held on

May 7, 2021, is that the Search Committee made no reference at all in

its resolution to the D.O. dated May 6, 2021. Anyone, reading the

minutes, would have no idea at all that at a previous stage of the process

the members of the Search Committee themselves had doubted whether

the third respondent was duly qualified or not and how such doubt came

Page 11 of 29

to be cleared. No explanation is proffered in regard to this omission.

Obviously, this could not have been an inadvertent error.

18. According to Mr. Banerjee, the Secretary, GoI had referred to in the D.O.

that the ‘documents of experience’ had been considered; and, having

regard thereto, the Court ought not to sit in appeal over the satisfaction

reached by the members that the third respondent was duly qualified.

19. The bunch of documents handed over to us have been duly looked into.

We record having perused each and every page. What the bunch

contains are documents mainly comprising office orders detailing the

third respondent’s work allocation along with certain certificates of

conferences attended and papers authored by him. Our examination of

the documents yielded no conclusive evidence to prove the third

respondent’s experience. On the contrary, there is one document in the

bunch which is sufficient to seal the fate of the third respondent. We

propose to refer to this document at a later stage of this judgment.

20. We preface further discussion recording our consciousness of what the

law is. It is not for the Court to sit in appeal over decisions of selecting

bodies, whatever be the nature of the post/office. If the selection made

by the selectors, who are experts in the field, is laid to a challenge, a

merit review is forbidden; what is permissible is, inter alia, a limited

scrutiny of ascertaining the eligibility of the aspirants and the procedure

followed, that is, whether a duly qualified aspirant has been selected and

whether the procedure followed was fair and in consonance with

statutory rules or not. However, merely because the Search Committee

Page 12 of 29

is chaired by the Cabinet Secretary and such committee consists of

experts, does not automatically make its recommendation immune from

judicial scrutiny; rather, in an appropriate case warranting such scrutiny,

the writ court would be justified in its interference with the process.

21. What appears to be disturbing is the total lack of procedural fairness in

the present case. If indeed a doubt had lingered in the mind of the

members of the Search Committee as to whether an aspirant is eligible

in terms of the requirements of the statute, is it not the duty of the

Search Committee, in order to remain above board, to write even a

single sentence and record its satisfaction in the minutes that the doubt

has been cleared? The answer to this question cannot be in the negative.

22. We would not have given this aspect too much of an importance had the

UoI been able to justify by placing relevant documents that the

Secretary, GoI had, indeed, given a correct opinion as regards eligibility

of the third respondent upon looking into all relevant documents. The

contents of the D.O. as well as the relevant file and the other documents

in the sealed cover are far from revealing what specific documents the

Secretary, GoI had looked into for concluding, with a measure of

assurance, that the third respondent possessed the required 10 years’

experience as ‘Head of a Department’. When attention to this was drawn,

we were presented with the bunch of documents which, as stated before,

cause more harm than good to the cause of the UoI and the third

respondent. We have no hesitation to hold, based on reasons assigned

hereafter, that there was no material before the Search Committee on

Page 13 of 29

the basis of which the third respondent could have been held to be

eligible, having had 10 years’ experience as the ‘Head of a Department’.

23. This is considered sufficient to nullify the selection. But, having regard

to the erudite arguments advanced at the Bar, we have ourselves

proceeded to examine whether the common contention advanced by the

UoI and the third respondent of the latter having the requisite

experience, is acceptable or not.

24. The explanation to Section 4 serves as a guiding principle in this dispute,

which defines the meaning of ‘leader’ as ‘Head of a Department’ or ‘Head

of an Organisation’. What remains undefined in the NCH Act is the

meaning of ‘Head’.

25. When there is doubt as to the meaning of a word in the provisions of a

statute, the rules of statutory interpretation call upon us to interpret the

words in a statute by giving a purposive interpretation having regard to

the subject and object of the enactment. This Court in Workmen of

Dimakuchi Tea Estate v. Dimakuchi Tea Estate

12

, observed that:

“9. …Secondly, the definition clause must be read in the context of the

subject-matter and scheme of the Act, and consistently with the

objects and other provisions of the Act. It is well settled that ‘the words

of a statute, when there is a doubt about their meaning are to be

understood in the sense in which they best harmonise with the subject

of the enactment and the object which the legislature has in view.

Their meaning is found not so much in a str ictly grammatical or

etymological propriety of language, nor even in its popular use, as in

the subject or in the occasion on which they are used, and the object

to be attained’. (Maxwell, Interpretation of Statutes, 9th Edn., p. 55).”

26. An examination of the NCH Act reveals that it was enacted to provide for

various aspirational objectives, inter alia, a medical education system

12

AIR 1958 SC 353.

Page 14 of 29

that improves access to quality and affordable medical education ,

ensuring availability of adequate and high quality homoeopathy medical

professionals in all parts of the country, promoting equitable and

universal healthcare, making services of homoeopathy medical

professionals accessible and affordable to all the citizens as well as

promoting national health goals. Section 10 of the Act provides for the

powers and functions of the Commission and, inter alia, provides that

the Commission is responsible for laying down policies for maintaining

high quality and standards in the education of homeopathy and to make

necessary regulations in this behalf, laying down policies for regulating

medical institutions, medical research and to make necessary

regulations in this behalf, assessing the requirements in healthcare, as

well as framing guidelines and policies for the necessary and proper

functioning of the Commission, Autonomous Boards and the State

Medical Councils of Homeopathy . Under Section 9 of the Act, the

Chairperson shall preside at the meeting of the commission.

27. Therefore, the appointment of the Chairperson, who is the head of the

Commission carries significant importance and affects various

stakeholders in the field of homeopathy. Apart from this, the

appointment falls within the field of public employment covered under

Article 16 of the Constitution read with Article 14 thereof.

28. Section 4 clearly lays down that the candidate must have minimum

twenty years of experience in the field of homeopathy, out of which at

least ten must be as a ‘leader’. These eligibility requirements cannot be

Page 15 of 29

waived off by the administration, since they are mandatory

requirements. This Court in Alka Ojha v. Rajasthan Public Service

Commission

13

laid down that the qualifications prescribed in the Rules

and the advertisement were mandatory:

“14. The use of the word ‘shall’ in Rule 11 makes it clear that the

qualifications specified in the Schedule are mandatory and a candidate

aspiring for appointment as Motor Vehicle Sub -Inspector by direct

recruitment must possess those qualifications and must have working

knowledge of Hindi written in Devnagri script and knowledge of

Rajasthani culture. A conjoint reading of Rule 11, the relevant entries

of the Schedule and Para 13 of the advertisement shows that a person

who does not possess the prescribed educational and technical

qualifications, working experience and a driving licence authorising

him to drive motorcycle, heavy goods vehicles and heavy passenger

vehicles cannot compete for the post of Motor Vehicle Sub-Inspector.

15. The question whether the candidate must have the prescribed

educational and other qualifications as on the particular date specified

in the Rule or the advertisement is no longer res integra…”

(emphasis supplied)

29. No precedent has been placed before us which previously considered the

meaning of the term ‘Head of a Department’ or ‘Head of an Organisation’

nor are we aware of any such decision and are therefore tasked with

providing a definition to these terms in line with the relevant facts of this

case. ‘Head’ in general parlance can be considered to mean an elevated

position among other subordinate roles , often in the position of

leadership. With no specific legal definition of the noun ‘Head’, taking

into account the object and subject of the NCH Act read with Section 4,

‘Head’ must refer to a position held by an incumbent who performs the

role of a leader and is tasked with making substantive decisions for the

department/organisation. Any claim for being ‘Head of a Department’ or

‘Head of an Organisation’ is strengthened if the incumbent exercises

13

(2011) 9 SCC 438.

Page 16 of 29

administrative or supervisory responsibilities. However, this is not the

only factor to be considered. Any such determination must be on a case-

to-case basis.

30. In the instant case, the contention of the third respondent, supported by

the UoI is that he was in a position that would grant him the position of

‘Head’ since May 2008. They contend that as per the organisational set

up of CCRH, the Assistant Director (Homeopathy) is responsible for

various sections and cells of the organisation. However, a perusal of the

organisational set up reveals that the Assistant Director is not the ‘Head’

of the Technical Section. The ‘Head’ of the Technical Section is clearly

the Deputy Director General who controls the entire Technical Section.

The Assistant Director (Homeopathy) report s to the Deputy Director

General. The office orders brought on record show that the third

respondent was tasked with certain responsibilities, albeit including

administrative and supervisory duties; however, he was not given tasks

that resemble the duties associated with the ‘Head of a Department’.

Discharge of mere supervisory duties will not result in being referred to

as the ‘Head of a Department’, if the overall organisational set up does

not reveal such a position. Moreover, the third respondent was not the

only Assistant Director (Homeopathy) in the said organisation,

weakening the stance raised by him considerably.

31. We may now shift our attention to the document which we have referred

to in paragraph 19 (supra). It is an Office Order No. 906/2012-13 dated

July 11, 2012 issued by the Director General, CCRH in exercise of power

Page 17 of 29

delegated to him under the memorandum of Association and Rules,

Regulations and Bye-Laws thereof [Rule 50(i)]. Thereby, the third

respondent was declared as the “Head of Office” while he was holding

the post of AD (H) [that is, Assistant Director (Homeopathy)].

32. The aforesaid office order has to be read together with two other office

orders, referred to by Mr. Kamath. The first is Office Order No. 638/2011

dated October 5, 2011 issued by the Director General in-charge, CCRH

requiring Dr. Vikram Singh, Deputy Director, (Homeo), working in CCRH,

to hand over the entire charge of the Technical S ection to the third

respondent. The second is Office Order No.23/2014 issued by the

Director General, CCRH January 22, 2014 on reallocation of duties

among Technical Officers of CCRH, in supersession of all previous orders,

to take effect from January 27, 2014. In terms thereof, the third

respondent was made the second in command “after DG and Vigilance”

and one Dr. B.S. Arya was made the “Head of Office”.

33. All these office orders, read cumulatively, leads one to the only logical

and perceivable conclusion that the third respondent was the “Head of

Office” from July 2012 to January, 2014 or, at the very least, was never

the “Head of Office” prior to July, 2012. Also, he became second in

command only from January 27, 2014.

34. Therefore, even if we choose to liberally construe the term ‘Head of a

Department’ and consider October 5, 2011 as the date on which the work

of the Technical Section was transferred to the third respondent, he fell

short of the requirement of 10 years’ experience as the ‘Head of a

Page 18 of 29

Department’ by a little less than a year. He had experience of 9 years, 3

months and 11 days on the date of the Notification dated January 16,

2021; 9 years 4 months and 10 days on the date of his application, i.e.,

February 15, 2021; and exactly 9 years 9 months on the date of his

appointment as the Chairperson on July 5, 2021.

35. On the basis of the three above referred office orders, the position seems

to be clear as crystal that the third respondent was never the “Head of

a Department” at least any time before taking over entire charge of the

Technical Section in terms of the Office Order dated October 5, 2011

and, therefore, fell short of the requisite experience.

36. The conclusion recorded by the Secretary, GoI that the third respondent

did have the requisite experience as ‘Head of a Department’, which is

nothing but his ipse dixit, is plainly suspect and vulnerable on the face

of all these three orders and has to be declared to be a conclusion which

suffers from gross perversity.

37. This apart, the D.O. dated May 6, 2021 reflected an opinion of the

Secretary, GoI of the third respondent’s requisite experience of 10 years

being equivalent to ‘Head of a Department’. We are left to wonder who

determined equivalence and how such equivalence was determined.

38. It is apt to reproduce the decision rendered in N.P. Verma v. Union of

India

14

, wherein this Court on the aspect of equivalence held:

“20. As against this, the contention of HPCL is that the two

Committees that were appointed by the Chairman of HPCL considered

the different methods of fitment and equivalence of different pay

scales of ESSO, LIL and CORIL with the pay scales of IOC. Except the

bare allegation, no material has been produced before us on behalf of

14

1989 Supp (1) SCC 748.

Page 19 of 29

HPCL to show that the said Committees had, as a matter of fact,

considered the question of equation of posts on the basis of the

principle as laid down by the Central Government while referring the

matter to the Tandon Committee, namely, functional similarity and co-

equal responsibility. In the affidavits filed on behalf of HPCL, no

particulars have been given with regard to the functional equivalence

or otherwise of the different grades of these officers of CORIL, ESSO

and LIL. It is also not stated what happened to the consideration by

the Government of the Tandon Committee's Report. There can be no

doubt that the Government is not bound to accept the

recommendation of the Tandon Committee but, at the same time, the

equation of posts has to be made on the principle of functional

equivalence and co-equal responsibility. As no materials have been

produced in that regard on behalf of HPCL, it is difficult for us to hold

that the different grades of posts have been compared before placing

the officers of these companies in the IOC/HPCL scales of pay. While

it is not within the domain of the court to make the equation of posts

for the purpose of integration, it is surely the concern of the court to

see that before the integration is made and consequent fitment of

officers in different grades/scales of pay is effected, there must be an

equation of different posts in accordance with the principle stated

above. As there is no evidence or material in support of such equation

of posts, it is difficult to accept the rationalisation scheme with regard

to the placing of the officers of CORIL in different IOC/HPCL grades of

pay.”

(emphasis supplied)

39. What follows from the aforesaid view taken by this Court is that there

should be some material on the basis whereof equivalence is

determined. Generally speaking, equivalence of two posts may be

attempted to be determined by factors such as (1) qualifications and

requirements; (2) job responsibilities and duties; (3) work environment

and conditions including workload and pressure; (4) accountability and

impact; and (5) evaluation of the above and comparison.

40. Even though not doubting the authority and competence of the

Secretary, GoI to determine such equivalence (assuming that he is

competent by reason of the office he holds), such determination lacks

creditworthiness in the absence of any material, far less cogent material,

having been placed before us for our consideration. We have no

Page 20 of 29

hesitation to hold that the determination made is not backed by any

concrete evidence and is, therefore, wholly without any basis.

41. The instant case showcases an egregious departure from the mandatory

requirements prescribed in Section 4 of the NCH Act and the

advertisement for the said position and leaves no option but to interfere

with the said selection of the third respondent. The Division Bench

faulted the Single Judge by noting that the scope of interference in

service matters is extremely limited and that unless mala fides are

shown, the Court must not interfere. While we are in agreement with the

broad proposition of the law that interference in matters relating to

selection and appointment must be limited and the Court must not

generally substitute the findings of the Search Committee, we

respectfully disagree with the Division Bench that this was not a case to

interfere in, considering, the clear violation of the applicable statutory

rules.

42. A Constitution Bench in University of Mysore v. C.D. Govinda Rao

15

,

perhaps the first decision in the long line of decisions following it on

judicial review in matters of selection by individuals holding high

positions, provides a clear picture on the scope of interference, albeit

limited, in matters of the present kind. Hon’ble P.B. Gajendragadkar, J.

(as the Chief Justice of India then was) speaking for the Constitution

Bench observed :

“12. ……Boards of Appointments are nominated by the Universities and

when recommendations made by them and the appointments

following on them, are challenged before courts, normally the courts

15

1963 SCC OnLine SC 15.

Page 21 of 29

should be slow to interfere with the opinions expressed by the experts.

There is no allegation about mala fides against the experts who

constituted the present Board; and so, we think, it would normally be

wise and safe for the courts to leave the decisions of academic matters

to experts who are more familiar with the problems they face than the

courts generally can be……… What the High Court should have

considered is whether the appointment made by the Chancellor had

contravened any statutory or binding rule or ordinance, and in doing

so, the High Court should have shown due regard to the opinion

expressed by the Board and its recommendations on which the

Chancellor has acted. In this connection, the High Court has failed to

notice one significant fact that when the Board considered the claims

of the respective applicants, it examined them very carefully and

actually came to the conclusion that none of them deserved to be

appointed a Professor. These recommendations made by the Board

clearly show that they considered the relevant factors carefully and

ultimately came to the conclusion that Appellant 2 should be

recommended for the post of Reader. Therefore, we are satisfied that

the criticism made by the High Court against the Board and its

deliberations is not justified.”

(emphasis supplied)

43. This case pertains to eligibility of the third respondent and therefore

scope of judicial review, even though limited, is open. Hon’ble S.H.

Kapadia, J. (as the Chief Justice of India then was) speaking for the Court

in Mahesh Chandra Gupta v. Union of India

16

neatly delineated the

applicability of judicial review in cases of eligibility and suitability, thus:

“43. One more aspect needs to be highlighted. ‘Eligibility’ is an

objective factor. Who could be elevated is specifically answered by

Article 217(2). When ‘eligibility’ is put in question, it could fall within

the scope of judicial review. However, the question as to who should

be elevated, which essentially involves the aspect of ‘suitability’,

stands excluded from the purview of judicial review.

44. At this stage, we may highlight the fact that there is a vital

difference between judicial review and merit review. Consultation, as

stated above, forms part of the procedure to test the fitness of a

person to be appointed a High Court Judge under Article 217(1). Once

there is consultation, the content of that consultation is beyond the

scope of judicial review, though lack of effective consultation could fall

within the scope of judicial review….”

(emphasis supplied)

16

(2009) 8 SCC 273.

Page 22 of 29

44. In Veer Pal Singh v. Ministry of Defence

17

, this Court held that:

“10. Although, the courts are extremely loath to interfere with the

opinion of the experts, there is nothing like exclusion of judicial review

of the decision taken on the basis of such opinion. What needs to be

emphasised is that the opinion of the experts deserves respect and

not worship and the courts and other judicial/quasi-judicial forums

entrusted with the task of deciding the disputes relating to premature

release/discharge from the army cannot, in each and every case,

refuse to examine the record of the Medical Board for determining

whether or not the conclusion reached by it is legally sustainable.”

45. We are, at this stage, also reminded of what this Court in Distt.

Collector & Chairman, Vizianagaram Social Welfare Residential

School Society v. M. Tripura Sundari Devi

18

observed. The

instructive passage therefrom is quoted below:

“6. It must further be realised by all concerned that when an

advertisement mentions a particular qualification and an appointment

is made in disregard of the same, it is not a matter only between the

appointing authority and the appointee concerned. The aggrieved are

all those who had similar or even better qualifications than the

appointee or appointees but who had not applied for the post because

they did not possess the qualifications mentioned in the

advertisement. It amounts to a fraud on public to appoint persons with

inferior qualifications in such circumstances unless it is clearly stated

that the qualifications are relaxable. No court should be a party to the

perpetuation of the fraudulent practice. We are afraid that the Tribunal

lost sight of this fact.”

(emphasis supplied)

46. It would also be pertinent to highlight that though the third respondent

averred in his application (in pursuance to the Notification) that he was

the head of the department/organisation since May 2008, a contention

which we have rejected, it is also plain and clear that he misrepresented

his work experience for being considered for the coveted position of

17

(2013) 8 SCC 83

18

(1990) 3 SCC 655

Page 23 of 29

Chairperson of the Commission. What the consequence of an illegal

appointment could be, needs no emphasis.

47. The only escape route, which could have potentially saved the selection

of the third respondent from interference, is conferment of a power by

the statute on the appointing authority to relax the essential

qualification(s). Responding to our query, Mr. Banerjee frankly submitted

that the NCH Act did not confer any such power of relaxation on the

appointing authority. This obliterates the final beacon of hope for the

third respondent.

48. The Division Bench has referred to the case of Tajvir Singh Sodhi v.

State of Jammu and Kashmir

19

delivered by this Court to hold that

the scope of interference is limited. Paragraph 66 has been referred to,

which reads thus:

“66. Thus, the inexorable conclusion that can be drawn is that it is not

within the domain of the Courts, exercising the power of judicial

review, to enter into the merits of a selection process, a task which is

the prerogative of and is within the expert domain of a Selection

Committee, subject of course to a caveat that if there are proven

allegations of malfeasance or violations of statutory rules, only in such

cases of inherent arbitrariness, can the Courts intervene.”

49. While there can be no gainsaying that interference should be limited,

particularly when a merit review is sought as in Tajvir Singh Sodhi

(supra), the decision does acknowledge that interference could still be

made if there are proven allegations of malfeasance or violations of

statutory rules, laying bare inherent arbitrariness in the process. This

decision too reinforces the legal position that if any of the grounds on

19

2023 SCC OnLine SC 344.

Page 24 of 29

which judicial review of administrative action is shown to exist,

interference on such ground would be well-nigh permissible. It is not an

arena in which intervention is completely barred.

50. In the case of Sushil Kumar Pandey v. High Court of Jharkhand

20

,

this Court while considering the departure from the statutory rules

midway through the selection procedure held that the statutory rules

must be given primacy in any selection process.

“22. We find from Rule 18 of the 2001 Rules, the task of setting cut-

off marks has been vested in the High Court but this has to be done

before the start of the examination. Thus, we are also dealing with a

situation in which the High Court administration is seeking to deviate

from the Rules guiding the selection process itself. We have considered

the High Court's reasoning for such deviation, but such departure from

statutory rules is impermissible. We accept the High Court

administration's argument that a candidate being on the select list

acquired no vested legal right for being appointed to the post in

question. But if precluding a candidate from appointment is in violation

of the recruitment rules without there being a finding on such

candidate's unsuitability, such an action would fail the Article 14 test

and shall be held to be arbitrary. The reason behind the Full Court

Resolution is that better candidates ought to be found. That is different

from a candidate excluded from the appointment process being found

to be unsuitable.”

51. We hold that in the matter of essential qualifications prescribed by the

statute, there should neither be any deviation from the statutory

requirements nor the advertisement inviting applications while

conducting any selection process, unless power to relax the qualifications

is shown to exist.

52. Having said that, there is one other aspect which needs to be briefly

dealt with. The Division Bench observed that unless mala fides are

proved, the Courts should adopt a hands -off approach. Broadly

20

(2024) 6 SCC 162.

Page 25 of 29

speaking, there could be little quarrel with such proposition. However,

bearing in mind the facts and circumstances, we hold that the Division

Bench grossly erred in failing to consider that mala fides, in the sense of

malice in fact, i.e., actual malice, is not the only condition for

interference; it is open to a Court to interfere when legal malice or malice

in law is demonstrated to exist.

53. In Kalabharati Advertising v. Hemant Vimalnath Narichania

21

, this

Court discussed the concept of ‘malice in law’. Profitable reference may

be made to the following passages:

“25. The State is under obligation to act fairly without ill will or

malice— in fact or in law. ‘Legal malice’ or ‘malice in law’ means

something done without lawful excuse. It is an act done wrongfully

and wilfully without reasonable or probable cause, and not necessarily

an act done from ill feeling and spite. It is a deliberate act in disregard

to the rights of others. Where malice is attributed to the State, it can

never be a case of personal ill will or spite on the part of the State. It

is an act which is taken with an oblique or indirect object. It means

exercise of statutory power for ‘purposes foreign to those for which it

is in law intended’. It means conscious violation of the law to the

prejudice of another, a depraved inclination on the part of the

authority to disregard the rights of others, which intent is manifested

by its injurious acts. …

26. Passing an order for an unauthorised purpose constitutes malice

in law. … ”

54. Again, in the case of R.S. Garg v. State of U.P.

22

, this Court applied

this principle to service disputes by holding as follows:

“26. “Malice” in its legal sense means malice such as may be assumed

for a wrongful act done intentionally but without just cause or excuse

or for one of reasonable or probable cause. The term “malice on fact”

would come within the purview of the aforementioned definition. Even,

however, in the absence of any malicious intention, the principle of

malice in law can be invoked as has been described by Viscount

Haldane in Shearer v. Shields [1914 AC 808 : 83 LJPC 216 : 111

LT 297 (HL)] AC at p. 813 in the following terms:

‘A person who inflicts an injury upon another person in

contravention of the law is not allowed to say that he did so with

21

(2010) 9 SCC 437

22

(2006) 6 SCC 430

Page 26 of 29

an innocent mind; he is taken to know the law, and he must act

within the law. He may, therefore, be guilty of malice in law,

although, so far as the state of his mind is concerned, he acts

ignorantly, and in that sense innocently.’

……”

55. Furthermore, in the case of Swaran Singh Chand v. Punjab SEB

23

,

this Court held that non-compliance of the State’s own directions would

constitute malice in law. We quote the relevant passage hereunder:

“8. It is furthermore well settled that when the State lays down the

rule for taking any action against an employee which would cause civil

or evil consequence, it is imperative on its part to scrupulously follow

the same. Frankfurter, J. in Vitarelli v. Seaton [3 L Ed 2d 1012 :

359 US 535 (1958)] stated: (US pp. 546-47)

‘An executive agency must be rigorously held to the standards by

which it professes its action to be judged. … Accordingly, if

dismissal from employment is based on a defined procedure, even

though generous beyond the requirements that bind such agency,

that procedure must be scrupulously observed. … This judicially

evolved rule of administrative law is now firmly established and,

if I may add, rightly so. He that takes the procedural sword shall

perish with that sword.’

…

18. In a case of this nature the appellant has not alleged malice of

fact. The requirements to comply with the directions contained in the

said Circular Letter dated 14-8-1981 were necessary to be complied

with in a case of this nature. Non-compliance wherewith would amount

to malice in law……Thus, when an order suffers from malice in law,

neither any averment as such is required to be made nor strict proof

thereof is insisted upon. Such an order being illegal would be wholly

unsustainable.”

(emphasis supplied)

56. Based on the above, there is little doubt that the State, here the UoI,

has exercised a power for a purpose which is foreign to that for which

the power in law is intended. Viewed from this perspective, the act of

appointing the third respondent as Chairperson despite he not having

the requisite experience suffers from malice in law.

23

(2009) 13 SCC 758

Page 27 of 29

57. We hasten to add that whenever appointment to a public office is sought

to be made, irrespective of the nature of the office, the rules prescribing

mandatory eligibility criteria must be applied in a strict manner; after

all, every public appointment under Article 16 of the Constitution must

be fair, non-arbitrary and reasonable. Tested on this touchstone, the

appointment of the third respondent fails to pass muster.

58. Mr. Banerjee has appealed to the conscience of the Court referring to the

third respondent having effectively and capably discharged the duties

and performed the functions of his office over the last 42 (forty-two)

months and that less than 6 (six) months remain for him to demit office.

59. Having regard to the dictum in M. Tripura Sundari Devi (supra), it

amounts to a fraud on the public to make appointments in departure of

either the statutory requirements or a public advertisement. Fraud

unravels everything. This Court, under the Constitution, is the protector

of the rights of citizens; to allow a proven fraud to be continued is

unthinkable since it goes against reason as well as morality. We are

afraid, Mr. Banerjee’s appeal to our conscience does not commend

acceptance.

CONCLUSION

60. The appeals, insofar as they are directed against the impugned judgment

and order of the Division Bench reversing the judgment and order of the

Single Judge, are accepted. While we set aside the former, the latter is

restored, meaning thereby, the appointment of the third respondent

stands quashed. The third respondent shall step down from the office of

Page 28 of 29

Chairperson of the Commission forthwith. By forthwith, we mean a week

from date to enable him complete his pending assignments without,

however, taking any policy decision or decision involving finances. Fresh

process be initiated for appointment to the office of Chairperson of the

Commission expeditiously. We hope and trust that the selection process

will be taken to its logical conclusion, in accordance with law.

61. Benefits received by the third respondent are not touched; however, no

future benefit shall enure to him on the basis of the service rendered by

him as Chairperson, which stands quashed, beyond seven days from

date.

62. The appeal preferred by the appellant questioning rejection of his cross-

objection is, however, dismissed.

63. No order as to costs.

………………………………J

(DIPANKAR DATTA)

………………………………J

(MANMOHAN)

New Delhi.

12

th

February, 2025.

Page 29 of 29

ORGANISATIONAL SET UP OF CCRH