Summary
The Supreme Court quashed the appointment of the Chairperson of the National Commission for Homoeopathy because he lacked the mandatory ten years' experience as a 'leader' (Head of a Department or Head of an Organisation) under Section 4 of the National Commission for Homoeopathy Act, 2020. It held that a selection by an expert Search Committee remains open to judicial review on eligibility, that statutory essential qualifications cannot be departed from without a power to relax, and that the appointment suffered from malice in law.
Issues
- Whether the third respondent possessed the statutory eligibility of at least ten years' experience as a 'leader', meaning Head of a Department or Head of an Organisation, under Section 4(2) and the Explanation to Section 4 of the National Commission for Homoeopathy Act, 2020.
- What the scope of judicial review is over a selection made by an expert Search Committee chaired by the Cabinet Secretary, and whether interference requires proof of mala fides.
- Whether the Division Bench of the High Court rightly relied on CCRH's organisational set-up as part of the Government of India (Allocation of Business) Rules, 1961 to uphold the selection.
- Whether the appointment should be allowed to continue given that the incumbent had served most of his term.
Provisions considered
- Section 4(2) and Explanation to Section 4, National Commission for Homoeopathy Act, 2020Read as requiring at least ten years as a 'leader', defined as Head of a Department or Head of an Organisation. Construing the undefined word 'Head' purposively as a leadership position making substantive decisions, the Court found that the third respondent, a subordinate Assistant Director, fell short of ten years and the requirement was mandatory. (¶¶ 3, 24, 25, 28, 29, 30, 33, 34, 35, 41)
- Section 5, National Commission for Homoeopathy Act, 2020Provides for appointment of the Chairperson by the Central Government on the recommendation of a Search Committee; the Court held that the Committee's composition of experts chaired by the Cabinet Secretary does not make its recommendation immune from judicial scrutiny on eligibility and procedure. (¶¶ 3, 20)
- Sections 9 and 10, National Commission for Homoeopathy Act, 2020Referred to, with the objects of the Act, to show the importance of the Chairperson's office and the Commission's functions, which informed the purposive reading of 'Head'. (¶¶ 26, 27)
- Rules framed under Article 77 of the Constitution, Government of India (Allocation of Business) Rules, 1961The Division Bench treated CCRH's organisational chart as part of these Rules; the Supreme Court held this was a blunder, since the chart came from CCRH's 2012-13 Annual Report, and the respondents did not defend that reasoning. (¶¶ 1, 6, 15)
- Articles 14 and 16, Constitution of IndiaThe office being public employment under Article 16 read with Article 14, mandatory eligibility criteria must be strictly applied so that every public appointment is fair, non-arbitrary and reasonable; the appointment failed this test. (¶¶ 27, 57)
Held
- Courts do not sit in appeal over selections by expert bodies and a merit review is forbidden, but scrutiny of eligibility and of whether the procedure was fair and lawful is permissible; a Search Committee chaired by the Cabinet Secretary and composed of experts is not immune from judicial review. Eligibility is an objective matter open to review, while suitability is not. (¶¶ 20, 41, 43, 44, 49)
- Where the Search Committee itself doubted the candidate's eligibility, procedural fairness required it to record in its minutes how the doubt was cleared; the minutes said nothing about the Secretary's departmental letter certifying his experience, and the documents produced in sealed cover did not show what material had been verified, so there was no material on which he could have been held eligible. (¶¶ 9, 17, 19, 21, 22, 23)
- The word 'Head' in the Explanation to Section 4, being undefined, must be read purposively in light of the Act's objects: it denotes a leadership position whose incumbent makes substantive decisions for the department or organisation. Administrative or supervisory duties strengthen the claim but are not decisive, and the question is to be decided case by case. (¶¶ 24, 25, 26, 29)
- The third respondent was not Head of a Department while serving as Assistant Director, since he reported to the Deputy Director General who headed the Technical Section and was one of several Assistant Directors. Read together, the office orders showed that even counting from his taking charge of the Technical Section in October 2011, he had less than ten years' experience on the relevant dates. The Secretary's contrary conclusion was an unsupported ipse dixit and perverse. (¶¶ 30, 31, 32, 33, 34, 35, 36)
- A determination that experience is 'equivalent' to that of Head of a Department must rest on material such as qualifications, duties, working conditions, accountability and a comparison of these; an equivalence finding unsupported by any material is wholly without basis. (¶¶ 37, 38, 39, 40)
- Essential qualifications prescribed by statute and the advertisement are mandatory and cannot be departed from in a selection unless a power of relaxation exists; the NCH Act confers none. Appointing a person who lacks the advertised qualifications wrongs all who did not apply for want of them and amounts to a fraud on the public. (¶¶ 28, 45, 47, 51)
- Interference is not confined to cases of actual malice; malice in law, meaning the exercise of power without lawful excuse or for a purpose foreign to that intended, also justifies interference. Appointing a candidate lacking the statutory experience suffered from malice in law, and the third respondent had also misrepresented his experience. (¶¶ 46, 52, 53, 54, 55, 56)
- That the appointee had served capably for about 42 months with under six months left did not save the appointment, since fraud unravels everything and an appointment made in departure from statutory requirements cannot be allowed to continue. (¶¶ 58, 59)
Result
Appeals against the Division Bench judgment allowed; the Single Judge's order restored and the third respondent's appointment quashed; he must step down within a week, taking no policy or financial decisions meanwhile; benefits already received not disturbed but no future benefit from the quashed service; fresh selection to be initiated expeditiously; the appellant's appeal against rejection of his cross-objection dismissed; no costs.