KAN SINGH, J. - (1.) IN this writ petition under Art. 226 of the Constitution certain appointments of Professors and Readers in Surgery made by the Government (vide their order dated 21-2-69 Annexure 13) under the Rajasthan Medical Service (Collegiate Branch) Special Selection Rules, 1967 are impugned.
(2.) THE petitioner Dr. S. M. Gupta had entered the service of the State of Rajasthan in 1955 as CAS Class I. He was appointed as a Junior Specialist in 1962 and appointed to officiate as Lecturer in Surgery on 28-2-67. He came to be promoted as Officiating Reader in Surgery on 23 8 67. Five posts of Professors, 11 posts of Readers and 17 posts of Lecturers were advertised for being filled in accordance with the Rajasthan Medical Service (Collegiate Branch) Special Selection Rules, 1967, hereinafter to be referred as the "1967 Rules". He applied for the post of a Professor in accordance with the 1967 Rules. Like others he was called for interview by the Special Recruitment Board constituted under the 1967 Rules. He appeared before the Board and found that out of 5 members of the Board only 4 were present and Dr. S. C. Mehta, the Director of Medical and Health Services, was not present. As a result of the assessment said to have been made by the Board and on the basis of the recommendations made by it the Government made the appointments vide Ex. 13. In assailing the validity of these appointments Dr. S. M. Gupta contends that the Board was not properly constituted in as much as Dr. S. C. Mehta had not sat for interview which was taken by only 4 of the members. It is submitted that the Board had not come into existence on account of the absence of Dr. S. G. Mehta with the result that the recommendations made by the body functioning as the Board as also the Government order Ex. 13 stood vitiated. Apart from this it was contended that Dr. D. G. Ojha, Dr. P. L. Rishi and Dr. M. N Katju had not even appeared for interview before the alleged Selection Board and yet they came to be appointed as Professors. Dr. Gupta further averred that the alleged Selection Board had fixed 15 out of the 30 marks as the minimum marks for considering a candidate suitable for appointment as a Reader and Dr. Gupta claims that he had secured 17-1/2 marks and was thus quite suitable for appointment as a Reader and yet his name was not recommended by the alleged Selection Board to the Government for appointment. Dr. Gupta's name was recommended for appointment as a Lecturer in Sur-gury and in Ex. 13 Dr. Gupta's name appears at No. 1 in the list of Lecturers in Surgery. Dr. Gupta's case further is that his name was rejected for appointment as Reader on extraneous considerations and therefore, the recommendations of the alleged Selection Board were vitiated on that ground as well. The writ petition has been opposed by the State of Rajasthan and Dr. M. C. Mehta, respondent No. 14. Other respondents have not chosen to appear. In the Government's reply which was signed by Shri Gopesh Bhatt, Dy. Secretary, Medical & Health Department, it was denied that Dr. S. G. Mehta was absent at the time the candidates, including the petitioner, for the posts of Readers were interviewed. It was submitted that all the members of the Selection Board were present at the interview. However, on 23-4-69 Dr. S. G. Mehta, Director of Medical & Health Services, filed an affidavit in which he stated that he had not attended the meetings of the Selection Board on 24th and 25th October, 1968 when candidates eligible for teaching posts in the Department of Surgery were interviewed by the Board. It was further stated by him that he had signed the report of the Special Selection Board recommending candidates for appointment to various teaching posts in Surgery and other subjects, after going through the contents of the report and that he had agreed to the marks allotted to various candidates by the Special Selection Board and had signed the mark sheet and the report, after going through the contents thereof. Dr. Mehta, respondent No. 14, has also contested the writ petition. It is denied by him that the appointments made in Government's order ex. 13 were invalid on any of the ground taken by the petitioner. He also took a preliminary objection that Dr. S. S. Rawat and Dr. Arora, who were selected as Lecturer, were necessary parties. It was pointed out that the order Ex. 13 is a composite one and thereunder not only the appointments of Professors and Readers have been made, but the Lecturers have also been appointed and if the order Ex. 13 is held to be invalid on any of the grounds taken by the petitioner then the appointments of Lecturers also will be put in jeopardy and therefore, they were all necessary parties. Then it was submitted that Dr. Gupta had not questioned the constitution of the Selection Board when he had appeared before it, but instead he took a chance of his being selected and when he lost the race he has come to this Court. It is maintained that by his own conduct Dr. Gupta has disentitled himself from filing the writ petition. Then it was urged that the 1967 Rules were silent about the quorum for the meeting of the Selection Board and therefore, in the circumstances, majority of the members of the Selection Board constituted the quorum for transacting the business of the Selection Board. Apart from this it was submitted that the recommendations that were actually made to the Government were of the Board in as much as Dr. S. C. Mehta was also a party to such recommendations, he having signified his agreement with the marks allotted to the candidates for the interview taken by the remaining 4 members. Then it was contended that the rules about the holding of interview are only directory in nature. In elaboration of this contention it was urged that the members of the Selection Board were discharging a public duty and even if they acted in breach of the rule the action of the Board was not vitiated, because in such a case it could be said that whereas it will result in good deal of public inconvenience and hardship to innocent persons in the striking down of the recommendations or order of the Government this could not benefit any party. Finally, it was submitted that 1967 Rules were to be in force only for a year and, therefore, this Court should exercise its discretion in not striking down the selections, as no corrective action can be taken by the Government now under the Rules. It will be convenient to read the relevant rules before dealing with the points canvassed before me. Before 1962 there were no separate service rules for the teaching staff in the various Medical Colleges in Rajasthan. According to the arrangements then prevalent certain members of the Rajasthan Medical and Health Service were working as Professors, Readers or Lecturers. In 1962, there was a bifurcation and the Rajasthan Medical Service (Collegiate Branch) was constituted. The Rules made under Art. 309 of the Constitution by the Governor prescribed certain rules of eligibility and for the constitution of the Collegiate Branch Service. The Rules also made provision for future recruitment, appointments and promotions. It appears that in the scheme of things brought about by the Collegiate Branch Service Rules of 1962 certain members of the Medical Services stood out. It was with a view to making certain appointments in the Collegiate Branch Service out of the Members of the Rajasthan Medical and Health Services that the Governor made the Rules in 1967. These Rules are thus supplemental to the 1962 Rules. The 1967 Rules came into force from 23-2-68 on their first publication in the Rajasthan Gazette. Rule 1 (3) provided that they shall remain in force for a period of one year. The Rules would thus have expired in February, 1969, that is, after 22-2-69. Dr. Gupta filed his present writ petition on 24 2-69. At the time of hearing learned Additional Government Advocate submitted that the life of these Rules was extended and the extended Rules expired in January, 1970. For the purposes of the present writ petition it is not necessary to go into the question whether the life of the Rules could have been extended in the manner it was sought to be done, but no one has challenged the validity of the extension and, therefore, I will proceed on the assumption that the life of 1967 Rules was validly extended. Reverting to the Rules, rule 2 (l) (a) defines the term "board" to mean the special Recruitment Board constituted under rule 4 of these rules. Rule 3 provides that notwithstanding anything contained in the Principal rules namely, 1962 Rules, the State Government may make recruitment to the Clinical Wing of the Service by Special Selection from among persons belonging to the Rajasthan Medical & Health Service. Rule4 provides for the constitution of Special Recruitment Board and I may read this rule in full: "rule 4. Constitution of Special Recruitment Board: - (1) For the purpose of these rules, the State Government may, constitute a Special Recruitment Board consisting of the following members, namely : (a) The Chairman of the Commission, or a member of the Commission nominated by the Chairman, who shall be the Chairman of the Board. (b) The Secretary to the Government in the Medical & Public Health Department; (c) The Special Secretary to the Government in the Appointments Department or his nominee not below the rank of Deputy Secretary; (d) The Director of Medical & Health Services; (e) A Principal of a State Medical College. (2) The Deputy Secretary, Medical and Public Health Department, shall act as non member Secretary of the Board. (3) The Board may, if it deems proper, co-opt not more than two persons of the rank of Professors in the Clinical subject concerned, other than the persons serving under the. Government, to assist it in assessing suitability of candidates. " Rule 5 provides that the State Government shall, as soon as may be, after the commencement of these Rules, determine the number of vacancies, in the Clinical Wing of the Service, specifying the number of posts in each category, to be filled by special selection under these rules and shall notify the vacancies in the official Gazette. Rule 6 lays down the conditions of eligibility and provides that persons belonging to the Rajasthan Medical & Health Service and holding the Posts specified in column 3, and possessing academic qualifications and teaching experience as specified in columns 4 and 5 of Schedule I on the date of the notification issued by the State Government under Rule 5 and who are willing to opt for the service if selected, may, within a month of the date of such notification, apply to the Secretary of the Board for recruitment by special selection to posts specified in column 2 of the said Schedule. Rule 7 is for the mode of making applications. Rule 8 is for interview by the Special Recruitment Board and I may read this rule also: Rule 8. Interview by Special Recruitment Board: - (1) The applications received in pursuance of notification issued under rule 5, shall be considered by the Board and such of the candidates who are considered eligible for selection shall be called for interview. The decision of the Board as to the eligibility or otherwise of a candidate for a particular post shall be final. (2) The Board shall interview candidates and assess their suitability for recruitment on the basis of criteria laid in Schedule II. " Rule 9 provides that the Board shall, having regard to the result of interviews, recommend the names of such of the candidates, if any, as are, in their opinion, suitable for appointment to the various posts. It further lays down that the Board shall prepare a list of such candidates and arrange their names in order of seniority as determined in accordance with the criteria laid down in para 3 of Schedule III. Rule 10 is for making of appointments to the Service and I may read this rule as well: "r. 10. Appointment to the service - The list of candidates prepared under R. 9 (2) shall be forwarded to the State Government and the State Government may make appointments in the available vacancies in the various posts in the Service from among the persons included in the said list. " The inter-se seniority of the persons appointed and those already appointed substantively under the 1962 Rules shall be determined by the State Government in accordance with the criteria laid down in Schedule III. Schedule I provides for eligibility. For the posts of Professors and Additional Professors Senior Specialists were entitled to apply and they were to have some years of teaching experience besides the academic qualification as prescribed by the University of Rajasthan. It is further laid down in col. 5 of the Schedule that one year of Clinical experience as Senior or Junior Specialist after obtaining post-graduate degree will be treated as half-year of teaching experience. For the posts of Readers, Senior Specialists, Jr. Specialist and C. A. S. working as Lecturers and Readers were made eligible. For the posts of Lecturers any Medical Officer having academic qualification prescribed by the University of Rajasthan and two years experience was made eligible. Schedule II lays down the criteria to be adopted in assessing the suitability of the candidate. Class I is about the length of the service, maximum marks for this are 5. Half mark was awardable for each completed year of service under the Government of Rajasthan on a post of C. A. S. or higher post. Five marks were allotted for Clinical teaching or equivalent specialised Clinical experience. One mark was awardable for every year of teaching experience in a Medical College in Rajasthan or elsewhere after post graduation or equivalent qualification and half mark was awardable for teaching experience prior to post-graduation. One year of Clinical Experience in Rajasthan or elsewhere after obtaining Post-Graduate degree was to be counted equivalent to half year of Clinical teaching experience after obtaining postgraduate qualification provided the incumbent was appointed as Junior/senior Specialist and held a post-graduate degree as prescribed by the University. Five marks were allotted for research publication or rural service. Marks were to be awarded for research work done, or publications made. In the case of an officer who actually served as C. A. S. in rural areas in accordance with Government Policy and who consequently did not get opportunity for research, and publication, one or two marks were to be awarded for one or two years of rural service, respectively. The marks awarded on this account were not to exceed 2. Five marks were award-able for Annual Confidential Reports Then five marks were allotted for Academic Record, Medals and Awards. In examining the academic record of a candidate the number of chances taken for obtaining Postgraduate degree or equivalent qualifications were to be recorded as one of the factors to be taken into consideration. Then lastly, five marks were allotted for interview. Thus the maximum marks were 30. Schedule III is for determining seniority of persons recruited by Special Selection and inter se seniority in the Service, The reply of the State Government filed by the Officer-in-charge of the case Shri Gopesh Bhatt left one with the impression that the petitioner was wrongly asserting that Dr. S. C. . Mehta was not present at the time of interview of candidates for the various teaching posts. Dr. S. C. . Mehta's affidavit filed subsequently however, clinches the issue. There is therefore, no room for doubting the assertion of the petitioner that Dr. S. C Mehta was not present at the time the candidates were interviewed on 24th and 25th October, 1968. This Court could have taken a serious notice of a mis-statement coming in Government's reply which was signed by no other than the Deputy Secretary to the Government, but the learned Additional Government Advocate has placed before me the original notes recorded by the Members of the Selection Board and they showed that the Dy. Secretary who was present at the Selection Board was one Shri Daulat Singh Kothari. It further appears that Dr. Mehta has signed the mark-sheets as also the recommendations made by the members of the Selection Board. Therefore, from the documents before him Shri Gopesh Bhatt could very well form an impression that Dr. Mehta was present at the time the Board held the interviews of candidates for appointments to the various teaching posts. In these circumstances the mis statement made by Shri Gopesh Bhatt in the Government's reply cannot be taken to be deliberate though it now turns out that it was undoubtedly a mis-statement of the factual position. The whole controversy turns on the constitution of the Board who took the interview of the candidates and as to what would be the effect of non-compliance of the relevant rule or rules. R. 8 of 1967 Rules inter alia lays down that such of the candidates who was considered eligible for selection shall be called for interview. It is specifically laid down in sub-rule (2) of rule 8 that the Board shall interview candidates and assess their suitability for recruitment on the basis of criteria laid down in Schedule II. Further R. 9 lays down that the Board shall, having regard to the result of interviews, recommend the names of such of the candidates, if any, as are in their opinion, suitable for appointment to the various posts. Then there is R. 10 which lays down that the list of the candidates prepared under R. 9 (2) shall be forwarded to the State Government. The State Government may make appointments in the available vacancies to the various posts from among the persons included in the said list. It is thus evident that the taking of the interview of the eligible candidates is an integral part of the process of making appointments. The powers of the Government are limited to making of appointments out of the list of suitable candidates prepared by the Board and in preparing the list of suitable candidates the Selection Board is to have regard to the interview. Therefore, looking to the entire scheme of the Rules the provision for taking of interviews of eligible candidates by the Selection Board is to my mind, mandatory.
(3.) SHRI G. M. Lodha, learned counsel for the respondent, however, argued that the provision was only directory. He relied on certain observations made in Atma Singh vs. State 1 ). In that case the learned Judges were dealing with the question of preparation of electoral rolls under the Rajasthan Municipalities Act. The learned Judges quoted a passage from Maxwell on Interpretation of Statutes 1lth Ed. page 369, wherein it was observed that "where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, yet not promote the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance of those on whom the duty is imposed or in other words, as directory only. " The observations arc hardly applicable to case like the present; If the provision regarding taking of interviews of eligible candidates were held to be directory, it will not promote the underlying object of the Rules, because the suitability has to be judged having regard to the interviews. As pointed out by their Lordships in Khub Chand vs. State of Rajasthan (2), the term "shall" in its ordinary significance is mandatory and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of legislature, to be collected from other parts of the Act. Their Lordships added that the construction of the said expression depends on the provision of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement from the direction and such other considerations. The objects of the legislation is to assess the suitability of the eligible candidates for appointments to posts in the Service and for that interview plays an important part. In these circumstances the provision cannot be construed to be directive, as breach of it is likely to defeat the object of the statute. The term "board" means Special Recruitment Board constituted under rule 4 of the Rules. According to rule 4, five members constituted the Board; one is the Chairman of the Public Service Commission or a member of the Commission. Another is the Secretary to the Government in the Medical & Health Deptt. , the third is the Special Secretary to the Government in the Appointment Deptt. or his nominee not below the rank of a Dy. Secretary, the fourth member is the Director of Medical & Health Services, and the fifth is a Principal of a State Medical College. Rule 8 contemplates the taking of interviews by the Board which means all the members of the Board. Shri G. M. Lodha argued that there were no provisions in the Rules for a quorum for the meeting of the Board and, therefore, majority of the members would be taken to constitute the requisite quorum. He referred me to a number of cases, but they all related to corporations and were hardly applicable to a case of statutory authority appointed to interview candidates for selection to posts under the Government. Where a statute constitute a certain authority for a certain specified purposes and confers certain powers on it then such powers are exercisable by that authority only. It is all the five members who will constitute a Board and not the majority of them. There is, therefore, no escape from the conclusion that the persons who interviewed the candidates on 24th & 25th October, 1968, were not the Board within the meaning of the 1967 Rules. The inevitable result of this is that the taking of the interviews by 4 out of the 5 members vitiates the interviews, The scheme of the Rules further shows that there are two stages in the assessment of suitability of candidates. The first stage is the taking of interviews and the second stage is the assessment of the suitability in the light of the criteria laid down in Schedule II. This is to be followed by the preparation of a list of candidates who are, in the opinion of the Board, suitable for appointment to the various posts. The inter view carries only 5 out of 30 marks. The mark for Clinical teaching and specialised Clinical experience involves only looking to the record and allotment of mirks according to the set formula. This has nothing to do with the interview. Likewise, the allotment of marks for research, publication or rural service only confidential record, academic records and awards could not depend on the interview. Regarding such marking the 4 out of 5 members who had done the marking first could pass on the papers to Dr. S. C. Mehta who could have very well agreed to that, but it is not easy to comprehend how Dr. S. C. , Mehta who was admittedly not present at the interview could agree to giving of certain marks to candidates for the interview. It is not asserted on behalf of the State who had the necessary record with them that the 4 members who interviewed the candidates kept either verbatim or substantially the record of the questions put to the various candidates and the answers given by them. If that were so, it could be conceived that even without being present at the time of interview, Dr. Mehta could be in a position to give marks to the candidates for the interview. It has also not been shown by the State who had the necessary records with them as to what were the minimum marks fixed by the Board for treating a candidate suitable. Learned Additional Government Advocate submitted at the time of arguments that no minimum marks were fixed for the assessment of the suitability of the candidate, but only the requisite number of candidates for the filling up of the posts advertised were recommended to the Government for appointment according to the marks obtained by them out of the maximum marks and this was according to the order of merit. It is not for this Court to say as to whether the Selection Board would recommend only as many candidates as were required to fill up the available vacancies, but the Rules, as they stand, do not limit the choice only to the equal number of candidates for the posts, because under rule 10 it is left to the Government to make the appointments out of the list. ;