Holding

The Council of the Indian Statistical Institute is an authority under Article 12, and the failure to comply with Bye‑law 2 invalidates the appointment of the Director.

Summary

The petitioners challenged the appointment of Shri B.P. Adhikari as Director of the Indian Statistical Institute (ISI) on the grounds that the ISI, being a body controlled by the Union Government, is a "state" or "other authority" under Article 12 and therefore subject to judicial review under Article 32. They also contended that the ISI’s Bye‑law 2, which mandates publicising a vacancy before appointment, was breached, rendering the appointment violative of Articles 14 and 16. The Court held that the ISI’s Council is indeed an instrumentality of the Government and thus an authority within Article 12, making the writ maintainable. It further ruled that the failure to give the required publicity, a procedural requirement embodied in the bye‑law, invalidated the appointment despite the bye‑law’s non‑statutory nature. Consequently, the appointment order was quashed and the ISI was directed to re‑advertise the vacancy before selecting a new Director.

Issues considered

The status of the Indian Statistical Institute and its Council as a "state" or "other authority" under Article 12 of the Constitution.
Writ jurisdiction under Article 32 for challenging the appointment.
Whether non‑compliance with Bye‑law 2 (publicity of vacancy) renders the appointment void.
The applicability of Articles 14 and 16 (equality and non‑discrimination) to the appointment process.

Legislation cited

Companies Act, 1956
Constitution of Indias. Article 12, s. Article 14, s. Article 16, s. Article 32
Indian Statistical Institute Act, 1959s. 12, s. 4, s. 5, s. 6, s. 7, s. 9
Societies Registration Act

Subjects

Article 12Article 32State authorityIndian Statistical InstituteBye‑law 2Publicity requirementDirector appointmentFundamental rightsEqualityAdministrative law

Judgment

395
'
.--t· B. S. MINHAS
A
v.

INDIAN STATISTICAL INSTITUTE & ORS. ·.
October 19; 1983 B

[P.N. BHAGWATI, AND R.B.' MISRA JJ]'
•
Constitution of India. Articles 12 and 32.

Indian Statistical lnstiture-.:..A society regbtered under the' Societies
Registration Act-Financed and ~ontrolled by Central ~overnment-Whethtr
'other authority' .within meaning of Article 12-Whether '1me1table to writ
jurisdic~ion under Article 32.

Civil Service

Indian Statistical lnstilute-Director-'vaCancy of-Bye law NO. · 2 of
Institute require vpcancy to be publicised before recruitment-Whether obligatory
for institute to follow the bye-law-No minute& · of- s'eleclion co'mmittee
maintained or circulated amongst members-Selection wh~ther valid.

Indian Statistical Institute Act 1959 Ss 4, 5, 6, 7, 9 an4 12.
. . .l .
Indian Statistical Tnstitute-lnstitute of National Importance-Whether
•other authority' within the meaning of Article 12,ofthe Constitutioii.

The InJian Statistical Institute was regisJered under . the . Societi~
Registration Act, and go,•erned by the Indian Statistical Institute. Act, 1959. F
Jts control completely vested in the Union. of India, respondent no. 5 in the
appeal. The Institute had been declared as an 'Institute of National
Importance.
. ·~

, The chief executive body of_ the Institute was the Council,. .responden,_t
no. 2 which consited of 25 members of whom three were representatives of the
·~ntral Government. The Council-was headed by a chaifman whO was·~lected.
In Orde~ to _discharge the adm_inistratiVe and acacJcmic responS~bilitf Or the
Instituti:: a Director was appOinted by the Council. Respondellt Do. 4 was
ap.pointt~ as_ a Director. · · ·· · · ·
,.
'I'Jle petitioner in his Writ Petition cballenieci the appointment of H
respondent no. 4 on the ground that he "'.as a person of much hiaher academic
-and other-accomplishments and far superior. -
iQ the said
..
respondent.
. .
.. ,..· ..
396. ~UPamm COURT REPORTS [ 1984) r s.c.a.

In the w'rit Petition it was contended : (i) Bye.Jaw' 2 expressly requires
.&· that the vacancy of DireCtorship should be s·uitably publicised but 'in the
present case no Publicity whatsoe~er was given to the vacancy Or Directorship.
Publicity was neces~ary if the appointment was .to be .fair and free. from
partiality· and' that'many were not aware of the vacancy of (he post of Director
tiIJ the actual order of appointment was made. (ii) He· was eoin·ently suitable
for being appc)inted to the post in view of the.various contributions in ~he field
of his work and the active p_art piayed by him in resolving the administrative
B problems of the Institute, and (Hi) no bio~data or information wa~ placed before
the Council which under the bye-laws was the appointing authority to enable
the members to gauge the comP,arative. suitability of various candidates .
•
The petition was resisted on behalf. of respnndent Nos. l · and 2 by
·o contending : (i) the petition is ~ot maintainable under Article 32 of the
Constitution as respondents Nos. 1 and 2 are not •s.tate' or •other authority'
within the meaning. of Art. '12 of ihe Constitutibn. (ii) Even assumiIJg that there
has been a violation of bye-law 2 no writ can lie to correct the same as the
alleged bye-law has no statutory basis- inasmuch as the Institute has been
dectafed as an •Institotion of National Importance', the bye-laws not being
... statutory the respondents are uhder no obligation to _observe lhe procedure
D laid down therein, and (iii) the petitioner was duly and ,properly considered for
selection to. the post.

Allowing the writ petition,
r
HELD : (i) The order o.f appointment dated· August 3, 1979 of
Respondent No. 4 as the Director of Respondent No. l is quashed- and set
E aside. Before Respondent ~o .. 'l proceeds to select· a new Di.rector, it Will
comply with the requirement of bye-law 2 by giving suitable public_ity to the •
yaca:ncy in tfle a:ffice of Director. [413 F] "'

(ii) There can be no doubt that rc!lipondent No. 2 is an 'authority' within
the meaning: of Article 12 of the Constitution and, therefore, the writ petition
filed by the petitioner is competent and maintainable. [409 G) •

In the ·instant case, the money required for fundii:;ig; the lnsti~ute is
provided entirely by the Ce~tral 9overnment and even if ·any other moneys
are to "be' received by the Institute it can be donC only V(ith the approval of the
Central Government, and the accou.nts of the .Institute ha Ve also to be ~ubmitted
a to the Central Government for ,its scrutiny and satisfaction. The Society has
to 'comply with all directions as nlay be issued by the Gentral Government.
The control Or the Central Go\'ernment is deep and peivasive and, therefore, it
is an instrutnentality of the Central Government and as such is an jauthority'
within the meaning of Article 12 of the Constitution. lt is,· therefore, subject
to the constitutional obligatfons under Aiticles 14 and 16 of the Constitution.
B [408 C-D)
•
Ajay J:(q•1" •!~- y. K/ialief Mujib ~ehr~varil! ~Ors, etc. [1931] 2 SCR 79
roferred to .
•

B.S, MINHAS V. STATISTICAL INSTITUTE 397

-+ 2. (i) It is obligatory on the part of respondent No. I to follow the
bye-laws for the bye-laws have been fra'med for· the conduct of its affairs to
avo'id arbitrariness. [410 GJ

. (ii) Compliance with bye-law 2 seems to be necessary i~ the name of
fair-play. If the vacancy in the post of Director had been publicised ·~S
contenlplated by bye-Jaw 2, a1l the pers.ons eligible for the post may have
applied and in that ca,se, the field Of consideration would h!lve been enlarged
.and the selection committee or the Council Would have had a much larger field B
from which to ~hoose ·!he best available_ person and that_would have rC1n?ved
all• doubt of arbi trarineSs. from
I
the mind of those
.
eligible for. the post. f411 BJ

Ra"1tfna·Dayararn Shetty v. lnernational Airport Authority of India (1979)
3 SCR 1014; Vitera/Ii v. Seton~ Law Fd. Second Series 1012: A.S. Ah/uwali~ v.
Punjab [1975] 3 SCR 82; Sukhdcv v. Bhagatram [1975! 3 SCR 619 refe'rred to. • ·C

a
(iii) In the case of appointment of Di.rector, bye-law 2 clearly provides
for publicity, the object being that all concerned may know about the v~carlcy ·
and either applications or recomn1endations may be made f-0r the post and the
names of the eligible candidates may be brought bef9re the selection . committee.
for its consideration. [412 H-413 A]
D
(iv) It is not suggested that appointments to every poSt" must be made
only after adverlising or publicising ihe· vacancy. That would tiot be right,
. for there are quite a few posts at the top level as for example Commander of
Armed Forces or the Chief Justice or ihe· Judges of the Supreme Court or the
High Colirt, which ·cannot be and should not be advertised or publcised,
because they are posts for which there should bC n.o lobbying nor should any
·applications be'allo\\;ed to be entertained. [411 C·DJ
E

· (v) It is not for the Court to det~rmille who iS the superior of the two
c.indidates and who should be selected. It is for the authorities· ·concerned to
:- select fron1 amongst .the availabe candid ates. The. members of the selection
committee as also tre· members of the Council were ~minent persons and they
may be presumed to have taken into account aII rele\-ant considerations before F
coming to a conclusion. Buf in the absence of publicity as contemplated by
bye-law 2, it cannot be said thatau other qualified persons like the petitioner
were also considered by tQe selection commillee for appointment, in the absence
of any application by them for the post or any· recommendation of them by any
other authority or individual. [412. C-E]

3. It$ is always desirable that iil public bodies the minutes of the G
proceediligs regarding selection should be _properly maintained in order to
obviate anY su~picion' or doubt and such minutes '!long with the relevant docu-
ment~ shoµld,be placed before the final authority eDtrusted with the task· of
selection for aPpointme.ot. [412 A]

In. tl,le.instant case; there is nothing on record to show that thC Council H
was at any time informed as to what names had been considered by the
selection cornm_ittee or that the_names of the petitioner had been. considereac.
~ut respoi.id~nt No .. 4 was found superior. ~4ll 1'l ·
• •

398 SUPREME COURT REPORTS (1984) l s.c.R.

ORIGINAL JURISDICTION: Writ Petition No. 1519 of 1979. +
A
.<Under.article 32 of the Constitution oflndia)

V.M. Tarkunde, P.H. Parekh and Miss Caprihan for the
Petitioner
B R.K. Garg, L.R. Singh and Gopal Singh for Respondents I & 2.

D.P. Singh, L.R. Singh and Mr. Gopal Singh for Respondents
3&4. •
Harbans Lal and G. S. Narain for Respondent No. 5.
c
.Miss A. Subhashini, C.V. Subba Rao and R.N. Poddar for the
Union oflndia.

The Judgment of the Court was delivered by

D MISRA J. : By the present petition under Article 32 of the
Constitution the petitioner seeks to challenge the appointment of
Shri B.P. Adhikari, respondent No. 4, as the Director· of the Indian
Statistical Institute, respondent No. 1.
"
. The Indian Statistical Institute is a Society registered under the
E
Societies Registration Act. It is governed by the Indian Statistical
Institute Act, 1959 (hereinafter referred to as 'the Act'). Its control
completely vest~ in the Union of India, respondent No. S. It is
wholly financed by ~he U nicln of India. All the functions of the
Institute are controlled by the Union of India, as is evident from
F the various provisions of the Act.· tinder s.8 of the Act the annual
' work programmes of the Institute and the general financial estimates
in respect of such work are Settled by committees ·appointed by the
Central Government and the Institute obviously cannot undertake
any research or training programmes without the approval of the
· Central Government. The Institute carries· on an integrated progra•.
G mme of training, teaching and research in statistics 'and·' application
of statistical techniques in other disciplines. The Institute has been
declared as an 'Institution of National Importance' under 'the Act.
Under s.4 of the Act'the Institute has been empowered to grant such
· degrees and diplomas in statistfos as may be. determined by the
ff rnstitute froin time to time. In accordance with the provisions
of s.S of the Act the Central Government pays to the Institute in
each financi~I year such sums of money as ·the Government considers
ll.S. MINlIAs v. STAftSTICAL INSTITUTE (Misra, II.) 399
necessary by way of grant, loan or otherwise to enable the Institute to
discharge efficiently its functions including research, education, train- A
ing, project activities and ~tatistical work relating to planning for
national development. 'Section 6 of the Act deals with audit of
acco.unts of.the Institute by auditors duly qualified to act as. auditors
' of companies under the Companies Act, 1956 and selected by the
Central Government after ·consultation with the Comptroller and B
Auditor-General. of India. Section 7 of the Act restricts the powers
of the Institute to alter, extend or abridge its 'memorandum or rules
and regulations and to sell or otherwise dispose of its proiierty
acquired with the money specifically provided for such acquisition
by the Central. Government excep.t with the previous approval of the
Central Government. Section 9 empowers the Central Government c
to constitute a committee, i~ter a/ia, for reviewing and evaluating
j the work done by the Institut.e and the progress made by it as also
· advising Government generally .on any matter which in the opinion
of.the Central Government is of importance in connection with the
work of the Institute. Section U of the Act empowers the Central D
Government to issue directions to the Institute. Section 12 authorises
to
the Central Go~ernment assume control over the Institute under
certain extreme circumstances. .
The~lnstitute receives grants from the Central Government to
meet almost the entire expenditure on its plan and non-plan activities.
E
• The chief executive body of the Institute is the Council, respondent
No. 2, consisting of 25 members including three representatives of
the central Government. The Council is headed by the Chairman
elected to that position by the Council by a simple majority from
amongst the names prop'cised by the President or members of the .F
Council. The election of the Chairman ·or the Council is governed
by bye-laws of the Institute.

The initial appointment to carry out research and teaching
work is to the post of professor. The next post in the hierarchy is
of Research professor and the highest in the hierarchy is the post of
G
Distinguished scientist. In order to discharge . the administrative
and academic responsibilites of the Institute, a Director, with dis•
tinctive administrative and academic acumen, is appointed by the
Council, respondent No. 2. Shri B. P. Adhikari, respondent No .. 4, B
was appointed as the Director of the Institute by an order dated
3rd August, 1979. This order of appointment has been challenged
by the p~titioner on various grounds.
400 . SUPREME COllRT REPORTS tt9S4] 1 s.c.a

According fo the petitionei' he was a Distinguished ·Scientist
A ·of the Institute at the relevant time. To start with, he was appointed
to'the post of Economist in the Indian Statistical Institute on !st .
October, 1962 on a monthly pay of Rs. 1000/- in the time scale of
Rs. 750-50-1250 plus special pay of Rs: 350/- per month. j
Within a year he was promoted as Professor in the time scale of
Rs. I000-5p-1500 with a starting pay.of Rs. 1400/- per- month, and
B from )st October, 1967 he had been holding the post of Research,
Professor in the iime scale of Rs. 1600-100-1900. On 1st January 1968
he was made Officer-in-Charge and entrusted with all technical
matters, administration and devolopmental plans relating to planning
and regional. survey un'its special training in Delhi. He was giv.en .a
C. ·allowance of Rs. 200/- per month oyer and above the pay in the
time scale of Resear<;h Professorship. The petitfoner has been respon-
sible during the period 1962-1974.for.tb,e creation.and promotion of
several new activities of respondent No. 1 in Delhi. Specialised
training in National Planning and Econometrics for M. Stat. (2nd
Year) trainees of respondent No. 1 was started in Delhi under the
D direction of the petitio~er .. lit August 1974 the petitioner \'/as designa-
'ted· as Head of the Delhi Centre and was also appointed to the Insti-
tute's Committee of Administratio.ri. On 12th March 1976 he was
elevaied to the position of 'Distinguished Scientist' with pay of Rs. ••
3000/- per month plus allowances. The petitioner has· held responsible
positipns as Visiting Professor, Fellow, Chairman, . Consultant,
:Research Associate, Lecturer etc. in various Universities in India
and in. the' United States of Amciica and England. He has been a
member of the planning Comll)iSsion, Government of India from
· January 1971 to. December, 1973 and he has also been a member
·or the Sixth Finance Commission from July 1972. to October 1973.
F The petitioner's work has been acclaimed in. the international as well
as national spheres, His work is rated· high as evidenced by the
. award .of Dadabhai Nauroji Mefllorial Prize for Economics in 1974 .~
and the Jawaharlal Nehru Memorial Fellowship in 1975. In 1976 ,
the petitioner had the distinction' of presiding o~er 'the. annual con-
G ference of the Indian Society· of .agricultural Economics. People
abroad have also conferred recognition on the petitioner..

·'
The petitioner's scientific output has•been substantial He has
. been active 'in research· and he hits published books of importance. on.
H
Theory, of International Trade, Scheduling the Operations of Multi-
.purpose Reservoirs, Indian· Planning, Planning and the Poor· etc~
Hi.s .contribution~ in the fo,rm.of articles in collaboration with Indian
b,§. MINHAS. v. STATISTICAL INSTITUTE (Misra,, J.) 461
· and foreign economists have been published ·in several journals in
India and abroad. One of his co authors, Prof. Arrow is a Nobel
Laureate. At present the petitioner is engaged in research on the
· following subjects :
• 1.· Growth, Poverty and ijasic Need, Development '
Policy iti Sri Lanka, Kerala and Punjab. B
2. lnter-Regiol\al Comparisons of Agricultural Growth
and Deve\opment in South Asia in the post-colonial
period,.

It is claimed that a comparative evaluation of the achivements
c
of the.petitioner with those of respondent No. ·4 clearly· shows the
superiority of the petitioner .over
. respondent 1" o. 4. · Respondent
.

·No. 4 had joined the Institute as Profesrnr in tne pay scale of
Rs: 750-1250 .. He was appointed in Delhi and was incharge <if .the
evening course in Jnteroductory Statistics. He served in Delhi for D
about a year and th~n went to Calcutta and continued as professor
from 1961 to 1974.' in contrast, the petitioner had started at a
higher salary of Rs. I OQO p.m. pl.us a special pay of Rs. 350 p.m .
. The petitioner had been promoted to the higher post of . Research
·r- Professor on !st October, 1967 in the time. scale of Rs.1600-lQ0-
1900 while respondent No. 4 had been promoted to the post ··of ·
E
Rese.arch Professor only in 1974. At that time respondent Ni:>.4's
appointment as Research professor had been objected to as he.had
• not published any ·technical paper since his joining the Institute in
1961. The petitioner was senior to respondent No.4 as he bad
beeri appointed to the higher post of Research Professor earlier than· . F
respondent No. 4. On 12th March 1976 the petitioner was promoted
.to the position of 'a Distinguished· Scientist. The petitioner is
senior to responde~t No. 4 and all other scientists of the Institute.
'
·~· The petitioner's elevation to the position of Distingusibed. Scienfots
came much earlier than that of respondent No. 4. ·The petitioner has
been holding the position of Distinguished Scienthi since 12th March
G
. 1976 :while respondent No. 4 was not a Distinguished Scientist ·
till his impugned appointment as Director.. . Respondent No.4 . has
won no laurels in bis sphere of work and his scientific output has
been negligible. Thus, from all accounts the petitioner was m'ore '
H
qualified and bis achievements in all spheres were much ·higher than ·
.those of responden( No. 4 or for the matter .of that, than. those of
. any other scienti.st of the Institute: ·
.402 .. SUPRl!Mll CQiJRt RB~RTS Jl984) l S.C.R,

The Institute has an academic council consisting of the follow-
ing members among others :

"1. All Professors, Research frofessors and Distinguished
Scientists. .t
.. 2........-:;,_,.... .

3................. : ..

4. •................ .

5. .. ..............,
c
6. . .................

7. Director (as Chairman of the academic council)."

The Institute is governed by its memcirilndum, regulations and bye-·
laws in tl~e conduct Of its affairs. Bye·laiv 2 provides the procedure
for the appointment of a ·Director. It reads : ·

"The appQintment of the Director shaii. be made by
the ·council on the recommendation made by a Selection
Committee consisting ·or · · ·

(i) Chairman of the Council (as Chairman) ,

(ii) Two experts approved by the Council. •

'F Before recruitment the Vacancy for. Directorship should •
be suitably public\sed."

In the meeting of the Council; respondent No. 2, on 16th April,
1979, ShriP,N .. Haksar, .respondent No. 3, .the. Chairman,. reported
about. the . absence of· the Director· and· other allied matters and ·
invited the attention of the meinbers·to the facfthat the Director of
· the Institute,. Prof, G. Kallianpur is unableto devote full time to the
Institute. ; The Council felt that since· the Institute required full time
· . attention"'it was desirable that Prof; .Kallianpur should be requested
·'H. to,continue inthe·post of .Director on a whole time basis. ,The
Chairman was authorised to. write to. the. Director conveying the
. views: of the members and after· getting a . response from Prof. .
K-allian.pur, to take further action•. In case Prof: Kallianpur resigned,
ll.S. MINHAS·.... STATJS'rlCAL INSTITUTE (Misra, J.) ·. 403

the Chairman was authorised to ·accep~ his resignation a~d· then to set
up a committee consisiing of the followiug . members to select a
suitable person for the post of Director :

I 1. Shri P.N. Haksar, C~airman. •

~ 2. . Prof. Bhabatosh Datta.
3. Prof, S.S. Shrikhande.

4. . Prof. M.S. Narasimhan.
5. Dr. R. Rainl!nna.

Subsequently another meeting of respondent No. · 2 was held on
3rd Augnst, 1979 in which the Chairman reported that Prof. Kallian-
pur had resigned from the Directorship of the- Institute with effect
from 30th June, 1979 and regarding the appointment of the new
• Director of the Institute the Chairm~n reported that the selection D
.committee, which had been constituted by the Council in its meeting
on 16th of April, 1979 had unanimously recommended the appoint-
ment of.respondent No. 4 as Director of the Institute, The Council
. approved the recommendation of. the selection committee and it
also approved the terms and conditions of appointment of respon-
dent No. 4 as Director. One of the terms of appointment of E
respondent No. 4 was that he should be in the substantive position
of a 'Distingu1shed Scientist' in the Institute on a monthly salary of
Rs. 3000.

When the peti~ioner came to know about the appointment-of
respondent No.4 to the post of Director he felt aggrieved and met
respondent No.3, the Chairman of the Conncil, Sbri P.N. Haksar
and expressed his deep unhappiness at the choice of the new Director
of respondent No~!. On getting no favourable response fromres-
~-·
pondent No. 3 the:· petitioner· tried to approach the other members of
the Council to indicate his resentment at the alleged illegality and "G
arJ?itrarinss in the appointment of respondent No.4. The petitioner
addressed a letter to Shri N. Srinivasan, Secretary to respondent No2,
wherein he referred to the circular dated 4th August, 1979 which
he had received ·intimating him about the appointment of respon._
dent No.4 as Director of -respondent No.I. By .this letter the H
petitioner pointed out to the Secretary.that the appointing authority
had not observed the rules and regulations and bye~iaws of the
404 SliP!UiMI! COURT REPOdS 11984} 1 s.c.ii..
Institute as laid down in the memorandum of association ·and had ·1
also violated .the provisions of Arts.14 and 16 of the Constituti~n.
He also pointed out that the vacancy of the p.ost of Director had
not 'been publicised anµ. he .being the seniorrnost researcher working •
as Distinguished Scientist" of the Institute was not given an oppor-
tunity to apply for the same. ·He also pointed out the arbitrary manner
B . in which the appointment of respondent No.4 had been made, and
he urged the Institute to rectify the error failing which he might be
' obliged to take legal action. The petitioner like.wise addre~sed a
letter to another member of the Council, Prof. R.P. Barnbah, who
• was a Professor of Mathematic in the Centre for• advanced Studies,
Punjab University and wai one of the two Scientists co-opted by the
c Cpuncil. The petitioner Jn his letter io Prof. Bambah complained
that-with the appointment of respondent No. 4 the Directorship and
his simultaneous designation to the post of Distinguished Scientist,·
the council had subverted the academic standards of the· Institute
and violated the rules and regulations as contained in the,memoran-
•
D. dum of association as also the variou·s provi<ions of the Constitu-
tion. Further, the appointment was arbitrary inasmuch a.sit was
without any regard to the· claims of seni.or and better known profes-
sional persons. He appealed to Prof. Bamba.h to _upheld the
academic integrity of-the Institute and initiate corrective action to
rectify the wrong and rescue · the Institute from manipulations of
unprincipled people. A similar Jetter was addressed by the petitioner
to Shri S.C. Bhattacharya, Director, llose Institute, Calcutta, on 31st
August, 1979, another member of the Governing Council of respon~
dent No. I, who was ·one of the four representatives of the Indian
National Science Academy. He also wrote fo Prof. P.V. Sukhatme,'
Professor of Biometry in Pone, who was '!.!so a distinguished
member of the Council. He was awarded the ·Padma Bhushan and
also held the post of Director of Statistics Dlvision of Food and Agri-
culture Organisation. A Similar letter was addressed by him to Shri
Subimal Dutt, President of respondent No. I, reiterating the same· ·
grievances. Similar let(ers dated 30th and 31st Augu;t, 1979 were
G addressed to Dr. K.C. Seal, Director, Central Statistical Organisation .
Govenment of India and to Shri Kirpa Narain, Secretary, Depart-
inent of Statistics' Government of India. '

It may be pointed out that the members of the selection Com-
·H mittee and the members of the Council are all men• of eminence and
highly qualified persons.
'··ll.S. MINHAS v. StATIST!CAL INSTITUTE (Misra, J.) 4oS

+ Pri>f. S.C. Bhattacharya by his letter date<t 5th of September,
1979 replied that the contents of the petitioner's letter were disquiet-
ing. He also stated that. respondent No.4 had been identified as a suit-.
able person by a group of eminent people .and on the basis 9f
advice received from them the Council, respondent No.2, had
approved the appointment of respondent No.4. the further stated that .

J he was not tnaking any. further conim•nts in the matter at this
stage. He was unaware ofTespondent ·No.4 having been-designated
as Distinguished Scientist by the Council in the meeting of 3rd
August, 1979. Regarding appointment he further said that no .report
of the selection committee had been circulated to, the· members of.
the Council but th~ announcement was ·made orally by the Chairman.
B

Since it· was difficult to bear every word of the Chairman at the meet-
ing he had assumed that the terms of. app,airitment would be ihose
,c
ordinarily pq:scribed for the post of Director; •

Prof. Sukhatme in his reply said that lie ·had not realised the
grave issues which such· an· .appointment could ·raise. He wanted,
however, to assure that there was no intention on their part to subvert
D
the academic standards of the ln>titute. He assured the petitioner
that he would be writing to the Secretary of the Council to know what
was the procedure for appointing a person to the post of Distinguished
Scientist and whether the same should have been explained to the.
Council before adopting the resolution. E

Prof..R.P. Bambab on- 22nd September, 1979 wrote a letter to
Shri P.N .. Haksar submitting his resignation presumably in .protest
against what had happened in regard to the appointment of respon-
dent No. 4 as the Director of the Institute. I~ bis lett~r he stated
that he had not received any official bio-data or information regarding
the scientific contribuiion ofrcspondent No. -4 and 'other available
candidates for the post of Director to enable him to form his .own •
judgmerit. He said that he presumed .that the scienti5c' contribution
of respondent No. 4 must have been- high enough to warrant his
holding ihe post of Distinguished ·scientist. He also ·e~pressed the G
view that since the committee consist.ed of eminent scientists working
under hi~ guidance, he bad presumed that all relevant factors had
be"'.' taken into consideration regarding the appointment to the p~st
of Director, including the quality of candidate's scientific contribution,
in coming to a dei:ision. In the circurnstances he. has constr~ined to H
resign from the Council since he ha.I not displayed due diligence. in
the performance of his function as member ,,f the Council.

•
406 SUPIUlME COuRT REPORTS (1984) 1 s.c.a.

The petitioner likewise rece~ved a letter from the. Chairman in
which he did not deny the allegation contained in the petitioner's
· letter dated 13th August, 1979 that the vacancy in the post of Director
of respondent No. 1 had not been publicised.
)
Another meeting of the Coucil was held on 19th October, 1979
\.,
and in this meeting Prof. Raja Ramanna, Dr. S.c: Bhattacharya and
Dr. P.V. Sukhatme were not present and Dr. Bambah had resigned
on 22nd September, 1979. Nonetheless, the proceedings of the mee-
. ting of 19th October, 1979 do not allude to Dr. Bambah's resignation.
In this meeting the letter of the petitioner was considered, copies of
which had been circulated . to the members earlier. and the Council
·,
c decided that no action was.necessary·in the n:iatter.
•
Shri V.M. Tarkunde appearing for the petitioner challe11ges
the appointment of respondent No. 4 on various grounds : t

1. (a) Bye-law 2 expressly requires that the vacan·cy of
D . the Directorship should be suitably publicised
but in the present case no' publicity whatsoever
was given to the.'vacancy of Directorship... .

(b} Even apart from the bye-law, publicity was
ll necessary if the appointment ,_;as to be fair and
free from partiality.
-< .
(c} The petitioner and many others like him were'
not aware of the vacancy of the pos.t of Director,
till the actual order of appointment of respon-"

' 2.
dent No. 4 was made.

The petitioner was ·eminently suitable for being
appointed to the post of Director keeping in ·view his
various contributions in·the field of his work and the
active part played by· him in resolving the adminis-
G trative problems of the Institute.

3. No bio-data or information was placed before the
Council which under the. bye-laws was the appointing
authority of the Director to enable the members to
H gauge the c,omparative suitability of various candi-
dates for the post of Director.. No facts relating to ..
the other candidates were presented before the
I B.S; MINHAS v. STATISTICAL INSTITIJTE (Misra, J.) 40'7

• selection committee by the Chairman. As such
·there was no application of mind by the members of A
. the Council, since no report was circulated regarding .
the recommendation of the selection committee, ·and
• the members of the Council took it for granted that
all was well.

Shri R.K. Garg appearing for respondents Nos. 1 and 2

-
resisted the petition on the following grounds :

(i) that the petition is riot maintainable under
Art. 32 of the Constitut.ion as respondent Nos. 1 ·
and· 2 are not 'state or other authority' within c
the meaning of Art. 12 of the Constitution.

(ii) ·(a) Even assuming, though not ,conceding, that
there has been a violation of bye·law 2 no writ
can lie to correct the same as the alleged bye-Jaw D
has no staiutory basis inasmuch as by the Indian ·
· Statistical Institute Act, 1959 Parliament only
'...,- declared the Indian Statistical Institute, respon-
. )-
dent No. 1 as an institution of national impor-
tance' and if 'it has made . bye-law 2 for its
guidance, such bye-law cannot be said to have E

- any statutory force.

(b) The bye-laws not being statutory the
respondents are under no obligation to observe
the procedure laid down in· the bye-laws: ·1

(iii) In any case the peiitioner was duly and properly
considered for selection to the posl of Director
and, therefore, he could not possibly make any
-r . grievance about violation of bye-Jaw 2. ' .

In.view of the contentions raised by the counsel for the parties
the first question· that falls to be considered is whether the writ
petition is maintainable.

Article 12 of the Constitution defines 'State' for the purposes · H
(lf Part III of the Constitution. It reads :
A
408 . SUPREME COURT REPORTS (1984) 1 S.C.R •

"12. In this part, unless the .context otherwise
requires, "the State" includes the Government and Parlia-
ment qf India and the Goyefnment and the tegislature of
+ '
each of the States and all local or other authorities within
the territory of India or under the control · of the
Government of India."
B
The learned counsel for the petitioner, Shri ':Tarkunde
has contended that having regard to the provisions of the Act and
the memorandum of association, the composition of respondent
No. I is dominated by the repr,esen!atives appointed by the Central
Government. The money required for running the Institute is provi-
c . ded entirely by the Central Governm·ent and even if any other
moneys are to be .received by the Institute it can be done only with
the approval of the Central Government, and the accounts of the
Institute have also to be submitted to the Central Government for
its scrutiny and satisfaction. .,The Society has to comply with all
such directions as may be issued by the Central Goverment. The
D 0

control of the Central Government is' deep and perva sive and, there-
fore, to all-intents and· purposes,'· it is an. instrumentality of the
Central Government and as such is an 'authority' within the mean- ·. ..,... .
. ing M Art. .12 of the Constitution.. It is, therefore, subject to the
constitutionai obligations under Arts. 14 and 16' of the Constitution.
~-
Reliance was placed upon Ajay Hasia etc .. v. Khalid Mujib Sehravardi
& Ors. etc.(') The Constitution !lench in that case took !the view
. that the expression 'other authorities' in Art. 12 must be given a
broad and liberal interpretation, where constitutional fundamentals
vital to the maintenance of human rights are at stake and functional
realism and not facial cosmetics tnust be the diagnostic tool, .for
F constitutional law must seek" the substance and not the form. The
Court pointed out the Government may act through the instrument-
ality or agency of juridical persons to carry out. its functions, since,
with the advent of the welfare State, iis new tasks have increased.
manifold and such juridical persons acting as the instrumentality
G or. agency of the Government must therefore be subject to the
same discipline of fundamental rights as the State. Proceeding
further the Court observed :
"It is undoubtedly true that' the corporation is a
B distinct juristic entity with a C'?fporate structure of its
own and it carries on its functions on business principles

(I) [1981]2 S.C.R. 79.
•

il.S. MINHA~ v, STATISTICAL INSTITUTE (Misra, J.) 409

~ith .a certain amount of autonomy which is · necessary
as well .as useful from the point of view of effective .
business l)lanagement, but behind the formal ownership
which is· cast 'in the corporate mould, the reality is
very much tlie deeply pervassive presence of the
Government. It ·is really the Government which
acts through the 'instrumentality or agency of the
corporation and the · juristic veil. of corporate
B
personality worn for the purpose of convenience of
management and administration cannot be ·allowed to·
obliterate the true nature of the reality behind which. is
.the Government. Now'h is obvious that if a corporation
is an instrumentality or agency of the Government. it c
must be subject to the sallle Ilmiiations in ..the field of'
constitutional law as the Government itself, though in
the eye of the law it would be a distinct and indepen-
. dent legal entity. If the Government acting through its
officers is subject to certain constitutional limitations,
it must follow ·a fortiori that the Government acting D
through the instrumentality or agency of a corporation
should equally .be subjeet to the same limitations. If
such a corporation were to be free from the basic
obligation to obey the Fundamental Rights, -it would
lead to considerable erosion of the . efficiency of the
fundamental Rights, for in that event the government

- would be enabled to over-ride the Fundamental
Rights by adopting the stratagem of carrying out
its functions th.rough the instrumentality · or agency
of a corpor"1tion, while retaining control over it."
• Having regard to this decision and in view of the facts and
circumstances in the present case there can ·be no· doub.t · that
respondent No.2 is an 'authority' within· the meaning· of_ Art. 12
of the Constitution and. therefore, the ·writ petition filed by the
petitioner is competent and maint_ainable and the objection raised
by Shri Garg cannot be accepted.
'
The next question that arises· for consideration is whMher tlie
appointment of respondent No.4 as Director of respondent No.I is
··illegal because of non-compliance with bye'law 2. Bye·law 2 does
tequire that before appointment, the vacancy ·in the post of Director H
· sl).ciald be suitably publicised. I~ the instatnt case, ·it is admitted cin
both sides that no publicity wbatsover was given in respect of the
•
•
.
410 SUPREME COURT REPORTS (1984) 1 s.c.R.

vacancy. The contention of Shri Garg, however, is that the bye-law
having no force of statute, non-compliance with its requirement can-
not in any way affect the appointment of respondent No. 4 as
Director ofrespondeni No. !. Shrl Tarkunde, however, :contended
that assuming that the bye-law is not statutory, even so respondent
No. 1 was bound to comply with it; In support of his contention he
B strongly relied upon Ramana Dayaram Shettj v. Intemationa/ Airport
. Authority of India.(') The Court in that case held :

"It is a well settled rule of administrative law that an
executive authority must be rigorously held to the ..
standards by which it professes its actions to be judged
0 and it must scrupulously observe those standards on pain
of invalidation of an act in violation of them. This rule
was· enunciated by Mr.· Justice Frankfurter in Viteral/i
v: Seton(') where ihe learned Judge said:

D "An executive agency must be rigorously held to ·the
standards by which it professes its actfon to be judged.
Accordingly, if dismissal from employment is bassed on
a defined procedure, even thilugh . generous beyond ·the
requirements th~t.bind such agency, that procedure mu~t
b.e 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 the sword." ' . .

,.
The aforesaid principle laid down by . Mr. Justice Frankfurter in
Vileralli v. Seton(') has been accepted as applicable in India by this
Court in A. S. Ahluwalia v. Punjab("! ·and in subsequent decision
, given ln Sukhdev v. Bhagatram.('! Mathew J. quoted the above-
referreq observation ·of Mr. Justice Frankfurther with approval.

G In view of the pronouncement of this Court on the point it
~ust be held to be obligatory on the part of respondent No, I to
follow the bye-laws, if the bye-laws have been framed for the conduct
cif its' ·affairs to avoid arbitrahness. Respondent No. I cannot,
' .
8 (I) [1979] 3 S.C.R. 1014. . . . .
(2) 3 Law 'Ed. Second Series' 1012. ·
•(3)'.[l975J 3 S.C.R. 82. ·
(4) [1975] 3 S.C.R. 619 •
•
... .
~,

B.S. MINHAS v. STATISTICAL JNSTITUTE (Misra, J.) 411

therefore, escape the liablity for not f111Iowing the procedure
prescribed by bye-law 2. A
Compliance. with this bye~law also seems to be necessary in·
the name of fair-play. ,.lf the vacancy in the post of Director had
been publicised as coniemplated by bye-law 2, all the persons eligible
for the post may have applied and in that case, the field of conside-
ration would have been enlarged and the selection committee or the B

.. Council would have had a much larger field from which to ·choose
the best available person and that would have removed all doubt, of .
arbitrariness from the mind of those eligible for the post. Of course,
we do not wish to suggest for a moment that appointment to every
post tnust be made only after advertising or publicising the ·vacancy.
That would not be right, for there are quite a few posts at the top.
level which cannot be and should not. be ~advertised 'or publicised,
. because ·they are posts for which there should be no lobbying nor
should any applications be allowed to be entertained. Examples of
- such posts may be found in the post of Commander of Armed Forces
or the Chief Justice or the Judges of the Supreme Court or the High D

-
Court. But here bye- law 2 requires that vacancy in the post of
Director should be publicised and hence we are making the above
observation in this paragraph .
•
The grievance of the petitioner is that he has not been
considered for appQintment to the post of Director although he is
E
far superior to respondent No. 4. If there had tieen due· publicity as
required by bye-law 2, he. and many others like him would have
applied for the post. Shri Garg, however, contends for· respondent
No. tthat the petitiqner can have no grievance as his case was duly
consid~red as stated clearly in the affidavit of respondent .No. 3,
S\tri P.N. Haksar, Chairman of the Council. We accept the state•
., '
merit of respondent No. 3 that the case· of the petitioner was conside•
red by the selection committee but it is a little unfortunate that 'there
-¥
,.,, is no written report by the selection committee for consideration by
the Council. No minutes of the proceedings before the selection
committee have been maintained and none were circulated amongst
the members of the Council ·along with the agenda of the meeting
. nor were any such minutes placed before the Council meeting when
the name of respondeni No. 4 was approved by the Council. There
is also'nothing on record to show that the Council was at any time
informed as to what names had been considered by the selection
committee or that the name of the petitioner had been considered but'
respondent No. 4 was found superior. It is always desirable that in
.,.
412 SUPREME COURT REPORTS (19841 I s.c.a.

public bodies the minutes of the proceedings regarding selection
A should be properly maintained in order to obviate any suspicion or
·doubt and such minutes along with the relevant documents should be
placed before the final authority entrusted with. the task of selection
for appointment. .

A lot of argument has been advanced by Shri Tarkunde ·that
B the achivevements and accomplishments of the petitioner were much
higher than those.of respondent No. 4. His contribution in the
matter of research had won him high praise. He had written articles
·and books of great merit. On the other hand the achievements or
accomplishments of respondent No. 4 were much lower when com·
c pared to those of the petitioner. Be that as it may, it is not for the
·Court to determine who is the· superior of the' two candidates and
ivho should be selected. It is for the authorities concerned to select
from aniongst the available candidates. The members of the selec·
tion committee as also the members of the Council were emlhent
persons and they may be presumed to have taken ·into account· all
D relevant considerations before coming to a conclusion, But the real .
difficulty is that in the absence of publicity ;is contemplate\! by bye-
law 2, it cannot be said that all other qualified persons like the
petitioner were also considered by the selection committee. for
appointment, in the absence of any application by them for the post
E · or any recommendation of them by any other authority or
individual. · ·

i;hri Garg, however, contends that the office of the Director is
a very high office and this honour is conferred and not· demanded
and an application for this office from the candidates was not at all
F necessllry as in the case of Judges of the Supreme Court, High Court
and other constitutional posts of Comptroller and Auditor Geperal
·of India etc, The selection committee composed of eminent 'scientists .
·or high reputation must be knowing about the reputed men in the
field of statistics ·and it is expected that they must have considered the.
'case of those persons also. · · ·'

For reasons we have already indicated, we find no force iii this
contention. ' There is no provision for publicity in case of the
constitutional posts of the Judges of the Supreme Court and High
Courts and Comptroller and Auditor General of India-. Rather in the
H
very nature of things, they cannot be and are not publicised.. But in
the case of appointment of a'Dir~ctor, bye-law 2 clearly provides for
· puplicity and it can only be with the object that all concerned may
,

il.S. MINHAS v. STATlStICAL INSTITUTE (Misra, J.) 413

know abouf the vacancy and ·either applications or recommendations
may be made for the post and the names of the eligible candidates my
be brought before the selection com'mittee for its consideration. fo the
state of the record before us it is not possible to say that the members
of the Council considered the case of the petitioner and other candi-
dates like him before approving the appointment of respondent No. 4.
It is true that the members of the selection committee and those of 8
the Council were experts in their respective subjects and were eminent
scientists and we must proceed on the basis that they acted in all
. fairness ·and no oblique motive can be attributed to them. Indeed
Shri Tarkunde did not 'allege any ma/a fidesagainst the members of
the selection committee or the members of the Coun'cil. •
0
•
On the admitted position, no publicity in regard to the vacancy
was done at all. No information about it was .Published even on the
·notice board kept in the various branches of respondent No. J. at
Calcutta and othei places. Nor was the information published in the
Journal of respondent No,· I. There '."as clearly a breach of bye-law D
·2'in making appointment of respondent No. 4 and there was no
adequate material before the Council on the basis of which the mem~
bers could apply their mind for determining as io whether they should
approve the rec<immendation of the selection commitee in regard to
appointment of respondent No. 4.
E

-
For the foregoi1;1g reasons the writ petition must succeed. It is
accordingly allowed. The order of appointment dated 3rd Au~t,
1979 of respondent No. 4 as the Director of respondent. No. 1 is•
' quashed and set aside. This will however not in any way affect the
validity of any action already taken ·by respondent No. 4 as Director
nor will it involve him in any liahility to refund any excess r.emune- F
ration received by him in his capacity af Director. Before respondent
No. I proceeds to select a new Director, it will comply with the
require!"ent of bye-law 2 by givinii1g suita'Qle publicty to th\} vacancy
in the office of Director. In ihe circumstances of the case the parties
will bear their own costs. G

N.V.K. Pe(ition allowed.