DR. J.N. BANAVALIKARversusMUNICIPAL CORPORATION OF DELHI AND ANR.

                      DR . .1.N. BANA VALIKAR                                         A
                                   v.
            MUNICIPAL CORPORATION OF DELHI AND ANR.

                              SEPTEMBER 21, 1995

                    [G.N. RAY AND S.B. MAJMUDAR, .JJ.]
                                                                                      B

          Se1vice Law:
1

           Municipal Corporation of Delhi-Hospital-Post of Medical Supelin-
    tendent-Non-promotional post-Appointment on-Absence of administra-                C
    tive policy decision or mle for appointment-Held : In absence of any mle or
    administrative policy decision, selection of Medical Superintendent is preroga-
    tive of M. C.D.

          Constitution of India, 195{}-A1ticle 14--Administrative decision--lf
    lacking reasonableness or failplay or tainted with malafide or arbitrminess,      D
    offends pe1vasive protection under A1ticle 14.

          Practice and Procedure-Non--ln1pleadn1ent of persons against whonz
    malafide alleged-Cannot be countenanced by the cowt.
                                                                                      E
          Appellant, a senior consultant in Tuberculosis, was on the post of
    Specialist Grade-I (T.B. and Chest) in R.B.T.B. Hospital, a specialist
    hospital for T.B. and Chest diseases under the M.C.D. He was given
    additional charge of Medical Superintendent, being the seniormost doctor
    in the hospital, although he was junior to many doctors in the integrated
    seniority list in the cadre of Specialist Grade-I.                                F

•          After having completed live and a half years as Medical Superinten-
    dent, appellant was removed from the post. Respondent No. 2, a specialist
    in Pathology, who was senior to the appellant in the integrated seniority
    list and was holding the post of Medical Superintendent in another hospi-         G
    tal, was appointed as Medical Superintendent in RBTB Hospital.

          Appellant challenged the removal order by filing writ petition under
    Article 226 which was dismissed on the ground that as Respondent No. 2
    was senior to the appellant in the cadre of Specialist Grade-I, the appellant
    had no legal right to continue on the post and no reason to tfel aggri_eved.      H
                                         1
    2                    SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A         In appeal to this Court, the contentions of the appellant were firstly
    that in the specialised hospital like the hospital in <1uestion, the post of
    Medical Superintendent had always been held by the Senior Specialist in
    T.B. and Chest diseases. Secondly, even if administration was competent
    to appoint Respondent No.2 by removing the appellant, the action of the
    Corporation must be consistent with reasonableness and fairplay and
B   informed by exigency of administration and thirdly that the order of
    removal lacked fairness and reasonableness and was malafide passed in
    order to accommodate some junior doctor as Medical Superintendent.

          The Respondent Corporation contended that the post of Medical
C   Superintendent was non-promotional post and the charge of the same is
    given to the senior most Specialist Grade-I.

          Dismissing the appeal, this Court

          HELD : 1.1. The High Court is justified in holding that the Appellant
D had no vested .right to continue as Medical Superintendent of the hOllpita!,
   simply because he was given the assignment of Medical Superinteadant
   and allowed to hold the oftice for a long time. The Appellant cannot claim
   as a matter of right to hold the oftice of Medical Superintendent which is
   not a promotional post or a post of special cadre and as a specialist
E. admittedly senior to the appellant in the integrated cadre of Specialist
   Grad~·I, has been given the assignment of R.B.T.B. Hospital without
   effecting his position as the Head of the Department in his speciality, the
   Appellant cannot challenge the appointment of Respondent • 2. [13-D·E]

          1.2 In the absenl'e of any rule or administrative policy decision,
F selection of Medical Superintendent of the hospital under the Corporation
    remains prerogative of the Corporation. The appellant has failed to
    produce any material to show that there had been any policy decision to
     select only a specialist in Tuberculosis and chest diseases as Medical
    Superintendent of R.B.T.B. hospital. The efticiency ofa doctor in discharg·
G   ing the function of the Medical Superintendent depends more on his
    administrative capability. than on his skill and specialization in a par·
    ticular stream of Medical Science. [12·8]

          2.1. Any action contrary to protection enshrined under Article 14 of
     the Constitution is per se void and not to be countenanced as existing.
H    Administrative decision of Government will not only be consistent with the
                         J.N. BANAVALIKAR v. M.C.D.                             3

    competence to take decision but such decision should also conform to            A
    fairness in action. Such fairness must be demonstrable with full
    transparency if a challenge of such action on the vice of arbitrariness or
    on the ground of malafide is made. If the administration of a public body
    or a government takes a decision which can be demonstrated as lacking in
    reascmableness and fairplay or tainted with malafide or arbitrariness, such     B
    administrative action even if made by a competent authority offends the
    pervasive protection under Article 14 of the Constitution of India against
    malafide and arbitrariness in the Governmental action and action of the
    public bodies. The appellant would be entitled to ask for quashing the
    impugned action of his removal from the post of Medical Superintendent,
    if it can be demonstrated to the satisfaction of the court that such action     C
    had been taken without reasonable basis and not being informed by
    administrative exigency, but merely on the caprice and ipsi dirit of the
    concerned authority or being actuated by malafide intention. [14-B-E)

          2.2. In the facts and circumstances of the appeal, it cannot be held D
    that the impugned action in removing the appellant and appointing
    Respondent No.2 is unfair or unjust or irrational or arbitrary or tainted
y   with malafide intention. [14-G]

          3. In absence of impleadment of the junior doctor, who is alleged to
    have been favoured by the course of action leading to removal of the            E
    appellat and the person who hail allegedly passed malafide order, in order
    to favour such junior doctor, contention of nialafide intention in fact i.e.
    malice cannot be countenanced by the court. [14-H, 15-A)

           E.P. Rayappa v. State of Tamil Nadu, [1974] 4 SCC 3, Vicc-Cha11cel-      F
    /01; L.N. Mithi/a U11ivm·ity v. Dayana11d Iha, (1986] 3 SCC 7, cited .
•
          4. The appellant having rendered long and useful service as a
    Specialist Grade-I and having been given supertime scale in the scale of
    Specialist Grade-I in recognition of his meritorious service, cannot be         G
    blamed for having legitimate aspiration to hold the position of status and
    dignity unique in the set up of a hospital, as Medical Superintendent. The
    concerned authority should be alive to such legitimate aspiration of the
    appellant and to consider his case of appointment as Medical Superinten.
    dent whenever an occasion for such consideration would arise, dispas-
    sionately and without being influenced by the result of this appeal. [15-B-C]   H
    4                      SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8434 of
    1995.

          From the .Judgment and Order dated 21.3.95 of the Delhi High Court
    in C.W. No. 3995 of 1994.

B         Harish N. Salve (NP) and Rajeev Dhavan, R. Santhana Krishnan,
    V.S. Chauhan and K.R. Nagaraja, for the appellant.

         Mrs. Shyamla Pappu, Ms. Madhu Tewatia and Ranbir Yadav for the
    Respondent No.l

C           The Judgment of the Court was delivered by

            G.N. RAY, J. Leave granted.

            Heard learned counsel for the parties.

D          This appeal is directed against order dated March 21, 1995 passed
    by the Division Bench of the Delhi High Court in Writ Petition No. 3995
    of 1994. The appellant, Dr. Banavalikar is a doctor with specialisation in
    tuberculosis and chest diseases. The appellant joined the medical service
    under the Municipal Corporation of Delhi on 28.4.1980. The appellant was
    posted as Superintendent-cum-Senior Consultant in Tuberculosis in Rajan
E   Babu T.B. Hospital. Delhi (hereinafter referred to as RBTB Hospital) on
    31st March, 1989 on retirement of Dr. R.P. Bagchi from Municipal Service.
    Dr. Banavalikar at that time was holding the post of specialist Grade-I (TB
    and Chest) in the said RBTB Hospital. In the letter posting the appellant
    as Medical Superintendent. It was specifically mentioned that he would get
F   his own pay scale while holding the chmge of Medical Superintendent. The
    appellant continued as Medical Superintendent of the said RBTB Hospital
    for about five and half years. The appellant was relieved from the charge
    of Medical Superintendent of RBTB Hospital. The appellant was intimated
    that he would continue to work as Senior Chest Specialist in the said
    hospital as before. The Respondent No. 2 Dr. Sudhakar Patnaik who was
G   w ·rking as Medical Superintendent in l.D. Hospital was given the charge
    of Medical Superintendent in RBTB Hospital. It may also be indicated
    here the appellant was given ad hoc promotion to the post of Supertime
    Grade I (clinical) in the pay scale of Rs. 5900-6700 with effect from 1.6.1994
    initially for a period of one year or till such time the post would be filled
H   up on regular basis or till further orders whichever would be earlier. Such
                      J.N. BANAVALJKAR v. M.C.D. IG.N. RAY.I.]                    5

        ad hoc rromotion was given to the appellant while be '"" holding the dual      A
        charge elf Medical Superintendent and Specialist Grade-I (TB and Chest)
        in the said RBTB Hospital.

                The appellant challenged the order of his removal from the post of
          Medical Superintendent of RBTB Hospital by filing a writ petition under
         Article 226 of the Constitution of India before the Delhi High court inter
                                                                                       B
         a/ia contending that the post of Medical Superintendent of RBTB Hospital
         had always been held by the Senior specialist in Tuberculosis and chest
    '    diseases and the appellant being the senior most specialist in Tuberculosis
         and chest diseases of the said hospital, was given the charge of Medical
        Superintendent with effect from March 31, 1989 on retirement of Dr.            c
         Bagchi. He had held the post of Medical Superintendent of RBTB till the
         impugned order of his removal from the post of Medical Superintendent
        and appointment of Dr. Patnaik to the said post was made. The appellant
        contended that in a specialist Hospital like RBTB Hospital, no one should
        be appointed as Medical Superintendent of the said Hospital who did not        D
        possess the specialisation in Tuber cu Iasis and Chest diseases. The appel-
        lant contended that he being senior rnost chest specialist in the said
.,.
        Hospital had been appointed to the post of Medical Superintendent of
        RBTB Hospital and there was no valid reasol) for his removul from the
        said post and appointing Dr. Patnaik who had specialisation in Pathology
        and who al the relevant time was holding the post of Medical Superinten-       E
        dent in the l.D. Hospital. The appellant also contended that the impugned
        order had resulted in his demotion without any basis. The writ petition,
        however, on contest, was dismissed by the Division Bench of the Delhi
        High Court inter alia on the finding that Dr. Patnaik was senior to the
        appelh1nt in the cadre of specialist (Jradc-1 and senior nuist doctor used     F
        to be given the charge of Medical Superintendent and the post of Medical
'       Superintendent had no separate scale of pay. It was also held by the High
        Court that the appellant had no legal right to continue as Medical Super-
        intendent and if a person senior to him was appointed as Medical Super-
        intendent, the appellant had no occasion to feel aggrieved.
                                                                                       G
               At the hearing of this appeal, Dr. Dhavan the learned Senior Counsel
        appearing for the appellant has contended that the. post of Medical
        Superintendent in a hospital is a distinct post. The Medical Superintendent
        is in overall charge of the hospital and all the doctor> including specialists
        in different specialities arc under his adn1inistrative control in the matter H
    6                     SUPREME COURT REPORTS (1995] SUPP. 4 S.C.R.
                                                                           l
                                                                                     •
A of administrative decisions. Even if the post of Medical Superintend'ent in
    the hospital under the administration of Delhi Municipal Corporation has
    no separate scale but the incumbent of the said post is just entitled to his
    own scale of pay as a specialist with only a nominal special allowance, the
    Medical Superintendent enjoys an unique position in the administrative set
    up of the hospital and every one understands that the Medical Superinten-
B
    dent of the Hospital holds a position superior to all other doctors. The
    status and dignity attached to the post of Medical Superintendent and
    overall administrative control of the hospital exercised by the Medical
    Superintendent always give him a position which is superior and is held by
    common man superior to other doctors. Such superiority of the post
c   emanates from the status, dignity and overall administrative control and
    the same is not referable to the scale of pay enjoyed by the Medical
    superintendent. In this connection, Dr. Dhavan has referred to the decision
    of this Court in E.P. Royappa v. State of Tamil Nadu, [!974] 4 SCC 3. In
    the said decision, thi.s court has indicated that the purpose of declaration
D   of equivalence of a non cadre post with a cadre post for the Indian
    Administrative Service is to ensure that public services are, in the discharge
    of their duties, not exposed lo the demoralising and depraving effect of
    personal or political nepotism or victimisation or the vagaries of the
    political machine. The government must apply its mind to the nature and
    responsibilities of the functions and duties attached to the non-cadre post
E   and determine the equivalence. It has also been held that equal pay will by
    itself not be decisive of the equation of status and responsibility of
    the post.

          Dr. Dhavan has referred to another decision of this c;ourt in Vice
F   Cha11cel/U1; L.N. Mithila U11ivC1sity v. Daywwnd !ha, [ 1986] 3 SCC 7. While
    considering the power of the Vice Chancellor to transfer any teacher
    occupying a post in any department or college maintained by the University
    to any equivalent post in another department or college maintained by it,
    it has been indicated in the said judgment that in order to be equivalent,
    the posts in question must broadly bear the same characteristics and class.
G   The true criterion for equivalence is the status and the nature of respon-
    sibility of the duties attached to the posts. The mere circumstance that the
    two posts are carried on the same scale of pay is not enough. Dr. Dhavan
    has submitted that RBTB Hospital is not a general hospital but a
    specialised hospital for the treatment of tuberculosis and chest diseases.
H   For a long time in the past, the Medical Superintendent of the RBTB
                   J.N. BANAVALIKAR v. M.C.D. [G.N. RAY,J.]                      7

    . Hospital was invariably a doctor having specialisation in chest and tuber-      A
      culosis diseases. As a n1atter of fact, the appellant, Dr. Banavalikar suc-
      ceeded Dr. Bagchi as Medical Superintendent on his attaining the age of
      superannuation. The said Dr. Bagchi was also a senior specialist in tuber-
      culosis and chest diseases. The Medical Superintendent controls the ad-
      ministrative set up of the entire hospital. In a specialised hospital like      B
      RBTB hospital, a person with specialised knowledge in the treatment of
      the patients suffering from tuberculosis and chest diseases who would be
      admitted in the said specialised hospital, is best suited for the post of
      Medical Superintendent, so that he would better appreciate the require-
      ment of various departments of the hospital and would be able to coor-
      dinate with various departments more effectively and by overall supervision     C
      and control of the administration, may tone up the administration to its
      desired level. It is because of the felt need of a specialist in tuberculosis
      and chest diseases to man the sensitive post of Medical Superintendent that
      all along a specialist in tuberculosis and chest diseases had been made
      Medical Superintendent of the Hospital.                                         D

           Dr. Dhavan has submitted that the appellant is not inefficient or
    incompetent to hold t_he post of Medical Superintendent. As a matter of
    fact, he had held the .said post for about five years and a half, he has also
    earned promotion to supertime Selection Grade I during the later part of
    his tenure as Medical Superintendent. Dr. Patnaik is·a pathologist and he         E
    had been holding the post of Medical Superintendent in I.D. Hospital. He
    has submitted that it is apparent that the concerned authorities desired to
    show favour to a person who is admittedly junior to the appellant by
    making him Medical Superintendent of T.D. Hospital and to accommodate
    such junior person. Dr. Patnaik had to be shifted from the post of Medical        F
    Superintendent of that hospital to RBTB Hospital and by that process to
•   relieve the appellant from the duties of Medical Superintendent.

           Dr. Dhavan has submitted that the High Court has highlighted the
    fact that the post of Medical Superintendent has no separate scale and the
    appellant has not suffered any change in his scale. Dr. Dhavan has sub-
                                                                                  G
    mitted that equivalence of scale in two posts is not at all a decisive factor
    to determine the equivalence in status and responsibility of the posts in
    question as indicated by this court in the decisions of Royappa (supra) and
    Vice Chancellor of L.N. Mithila University (supra). Dr. Dhavan has sub-
    mitted that it does not require any imagination to hold that the post of the H
    8                     SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A Medical Superintendent in the hospital is most prestigious and unique in
     status and responsibility. That apart, some special privileges like special
    .allowance and entitlement to residential quarter arc also available to the
     incumbent of the post of Medical Superintendent. The appellant has
     undoubtedly lost not only the special status of Medical Superintendent but
     also the other perks, which are special to the said post.
B
          Dr. Dhavan has submitted that in the facts of the case, there was no
    compelling administrative exigency to shift out the appellant from the said
    post and to bring Dr. Patnaik a pathologist already holding the position of
    Medical Superintendent in another hospital. Dr. Dhavan has submitted
C   that administrative decision will not only conform to the authority and
    power to take decision but should also conform to fairness in action. Dr.
    Dhavan has submitted that the High Court has unfortunately failed to
    appreciate the lack of fairness and reasonableness in the impugned action
    of removal of the appellant and being obsessed with the view that the
D   appellant had no inherent right to continue in the said post of Medical
    Superintendent, has dismissed the writ petition.

          Dr. Dhavan has submitted that the appellant is also a very senior
    specialist in the Health Department of Delhi Municipal Corporation. He
    has also a legitimate aspiration to get proper recognition from the con-
E   cerned authorities in view of his long and meritorious service as a specialist.
    The impugned order can not but hurt his sentiments and feelings. It is quite
    evident that the status so long being enjoyed by him as Medical Superin-
    tendent has been lowered. Even if the authorities are competent to pass
    the impugned order the court should be satisfied that it was necessary
F   because of a genuine administrative exigency to pass the impugned order.
    Dr. Dhavan has submitted that the respondent has failed to place materials
    to show the existence of a genuine administrative exigency to pass the
    impugned order. He, therefore, submits that this appeal should be allowed
    and the impugned order should be set aside. According to him such order
    will not create any prejudice to Dr. Patnaik because by virtue of his
G   seniority, he would hold the post of Medical Superintendent in another
    hospital.

          Mrs. Shyamala Pappu, learned senior counsel appearing for the
     Municipal Corporation of Delhi has disputed the contentions of Dr.
H    Dhavan. She has submitted that the appellant had not been demoted or
                  .1.N. BANAVALIKAR v. M.C.D. [G.N. RAY.J.]                       9

    reduced in rank. The post of Medical Superintendent is not a promotional          A
    post. The appellant was therefore never promoted Lo the said post of
    Medical Superintendent. The function nf Mcdic<:Ll Supcr)ntcndcnt is purely
    adn1inistrativc in nature and the senior n1ost doctor auton1atically becomes
    the Medical Superintendent of the conceraed hospital and performs the
    adn1inistrat ivc dutic.s attached to that post in addition to regular duties of
                                                                                      B
    the speciality to \vhich such doctor is attached. The senior n1ost doctor,
    \vho is asked to pcrfonn the duties nf 111edical superintendent, continues
    to get his o\vn pay scale as specialist. Such doctor however gets an ad-
    ministrative allowance of Rs. 200 per month for discharging the additional
    administrative duties of Medical Superintendent. Mrs. Pappu has sub-
    mitted that there is only one integrated seniority list of specialists Grade-I    C
    regardless of the fact whether the said specialist is a Medical Superinten-
    dent at any point of time. Mrs. Pappu has submitted that the appellant
    being seniormost doctor in RBTB Hospital, when Dr. Bagchi had retired,
    was posted as Medical Superintendent of RBTB Hospital in his own pay
    scale which he was drawing as specialist Grade I. The appellant by \Ortue         D
    of his seniority \Vas then not entitled to supertime Scale of specialist Grade
    I and some tin1c in 1994 he \Vas given such supcrtime scale on ad hoc basis.

            Mrs. Pappu has submitted that the aforesaid fact clearly indicates
    that the post of Medical Superintendent has never been treated as a
    superior post in the integrated cadre of specialists Grade I. The appellant       E
     being senior most doctor in the hospital was holding the charge of Medical
    Superintendent besides performing his normal duties as specialist Grade I.
    Even though he was given the assignment of Medical Superintendent, his
    position in the integrated seniority list \Vas n1aintained and he was not given
    the supcrti1ne scale in vie\v of his alleged promotion to a superior post. Tt     F
    \V1.1s only in 1994 when according to his seniority position, he became
•   entitled to supertin1e scale, it v. as given t:o hin1 on ad hoc basis.
                                     1




            Mrs. Pappu has submitted that a specialist is expected to treat the
    patient.'> in a better n1anncr by virtue of his expertise and specialised         G
    knowledge. The appellant being senior most specialist Grade I in the
    speciality of tuberculosis and chest diseases, is still holding the post of
    Head of the department which he had been holding even when Dr. Patnaik
    has been made Medical Superintendent of the Hospital. Similarly Dr.
    Patnaik being a specialist in Pathology has been discharging his duties as
    Pathologist despite the assignment of the duties of Medical Superintendent        H
    10                    SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A   of the hospital.

          Mrs. Pappu has submillcd that although an allegation of ma/afide
    action by way showing favour to junior doctor by making him Medical
    Superintendent in l.D. Hospital and consequential shifting of Dr. Patnaik
    as Medical Superintendent of RBTB Hospital has been made, neither the
B   person responsible for the alleged nwlaflde action in showing favour to a
    junior doctor nor the said junior doctor was impleaded in the writ petition
    before the High Court or in the special leave petition before this court. No
    particular of such maiaflde action has also been indicated by the appellant.
    Hen cc, the contention about malit:e in facL to show favour to another
c   doctor cannot be permitted lo be raised.


         Mrs. Pappu has also submitted that in the instant case, there was also
  no 'malice in law'. There had not been any arbitrary and unreasonable
  action in bringing Dr. Patnaik as Medical Superintendent of RBTB Hospi-
D tal. The administration of Delhi Municipal Corporation is required to look
  to the iuterest of all the hospitals and clinics under its control and interests
  of all the doctors under its are also to be looked into. Since the post of
  Medical Superintendent is not a promotional post and to a senior most
  specialist in a hospital .the assignment of additional duties of Medical
  services as a routine measure or normal monthly allowance o;er and above
E his regular pay is to be given, on overall consideration of administration of
  different hospitals Dr. Patnaik was posted in the RBTB Hospital and he
  being admittedly senior to the appellant was given the charge of Medical
  Superintendent. Mrs. Pappu has submitted that the appellant is not per-
  mitted to dictate the policy decision of posting of doctors in different
F hospitals and clinics under the Municipal Corporation of Delhi. Mrs.
   Pappu has submitted that on previous occasions the specialists in chest
  diseases happened to be the senior most specialist in RBTB Hospital and
  as such they had been made Medical Superintendent. As a matter of fact
   the appellant being senior most specialist in the hospital at the relevant
   time when Dr. Bagchi had retired, was given the charge of Medi_cal
G Superintendent even though in the integrated seniority list of specialist
  Grade I, he was junior to many. Mrs. Pappu has submitted that the
   perception of Dr. Banavalikar that only a specialist in chest diseases would
   be made Medical Superintendent in RBTB Hospital is not shared by the
   concerned authorities and there is also no basis for such contention. She
H has submitted that the appellant being Head of his department is quite
••                 J_N_ BANAVALIKAR v. M.CD. [G.N.RAY,J.]                      11

     free to guide and control the treatment of the patients and in the matter       A
     of treatment, the decision ef the specialist and Head of the· department
     prevails and there is no question of interference by the Medical Superin-
     tendent.

             Mrs. Pappu has submitted that as the post of Medical Superintendent
      is not a promotional post, the assignment of duties of Medical Superinten-     B
     dent lo the appellant when he was senior most specialist Grade I in the
     said hospital \Vas made as a routine measure. Such assignment ho\vever has
t
     not conferred any vested right on the appellant to continue as a Medical
     Superintendent. The High Court has, therefore, rightly rejected the writ
     petition by holding that the appellant had no vested right to continue as       C
     Medical Superintendent. Mrs. Pappu has submitted that appellant can not
     challenge the policy of posting of different doctors in various hospitals and
     clinics under the control of the Municipal Corporation. Jn any event, in the
     instant case any allegation of 'malice in fact' cannot be raised for the
     reasons already indicated. There is no material excepting vague and bald        D
     assertions as to unreasonable and ~njust decision in bringing DL Patnaik
     as Medical Superintendent in RBTB Hospital. Such contention being
     absolutely without any basis and having been made by the appellant only
     in an attempt to continue as Medical Superintendent of RBTB Hospital,
     the High Court has not accepted such contention and in the facts of the
     case, the same should not be countenanced by this Court. She has there-         E
     fore, submitted that any interference with the impugned order of the High
     Court is not warranted. The appeal therefore, should be dismissed.

           After giving our anxious consideration to the facts and circumstances
     of the case, the materials on record and the respective submission of the
     learned counsel for the parties, it appears to us that there is no specific F
     cadre post as Medical Superintendent of the hospital under the administra-
     tion of Delhi Municipal Corporation. It is the positive case of the respon-
     dent- Corporation that senior most specialist Grade I in a hospital is given
     the additional charge of Medical Superintendent of the Hospital. Such
     doctor in specialist Grade I performs his regular duties as specialist G
     Grade-I and also performs additional administrative duties as Medical
     Superintendent. Since post of Medical Superintendent is neither a separate
     cadre post nor the same is a promotional post, the concerned doctor
     remains in his own scale of pay as Grade-I but for discharging additional
     duties as Medical Superintendent, he gets a special monthly allowance of
     Rs. 200. The integrated seniority list in the cadre of specialist Grade-I H
    12                    'UPREME COURT REPORTS (1995j SUPP. 4 S.C.R.

A remains unaffected by the assignment of the responsibilities and duties of
                                                                                    ..
  Medical Superintendent on the Specialist Grade I. A senior most Specialist
  (irade-1 in a hospital even when made Medical Superintendent of that
  hospital carries his O\VD scale of pay and his seniority position as Specialist
  Grade-I. Precisely for the said reasons, the appellant Banavalikar, hy virtue
  uf his being seniormosl specialist Grade-I of RBTB Hospital when Dr.
B Bagchi, the then Medical Superintendent of the said hospital had retired,
  was made Medical Superintendent of the said hospital in L9H9 although in
  the integrated seniority list of specialist Grade-I he happened lo he junior
  lo many including the respondent "lo. 2 Dr. Patnaik. In the letter appoint-
  ing him as Medical Superintendent of RBTB Hospital, it was specifically
  mentioned that he \vould continue in his own scale of the specialists. It is
c a fact that until appointment of Dr. Patnaik as '.vledical Snperintendent of
  RBTB H<1'pital in 1994, the appellant and the other predecessors in office
  of the Medical Superintendent of RBTB Hospital were specialists in
  tuberculosis and chest diseases. But the fact remains that all the said
  specialists in tuberculosis and chest diseases holding the post of Medical
D Superintendent of RBTB Hospital happened to he the seniormost doctors
  in the said hospital. The appellant has contended that in RBTB Hospital
  which is not a general Hospital but a special hospital meant for treating
  patients suffering fron1 tuberculosis and chest diseases, the concerned
  authorities consciously and intentionally appointed a specialist~ in tuber-
   culosis and chest diseases as Medical Superintendent of the said hospital
E because such specialist is best suited for the post of Medical Superinten-
   dent in the said hospital. Such contention of the appellant has been
   seriously disputed by the respondents and according to the Municipal
   Corporation of Delhi, the function of the Medical Superintendent is purely
   administrative in nature and as such it is immaterial if the Medical Super-
   intendent of RBTB Hospital does not possess any specialisation in tuber-
F
   culosis and chest diseases. The contention of the respondent-corporation
   is that factum that the appellant and his predecessors in office of Medical       •
   Superintendent of RBTB Hospital were specialists in tuberculosis and
   chest diseases, was just a coincidence. The appellant has failed to produce
   any material to show that there had been any policy decision tu select only
G a specialist in tuberculosis and chest diseases as Medical Superintendent
   of RBTB Hospital. The perception of the appellant and that of respon-
   dent-C.:urpuration as to impelling necessity tu select a ~pecialist in tuber-
   culosis and chest diseases as Medical Superintendent of RBTB Hospital
   arc entirely different and in the absence of any rule or policy decision of
   the concerned authorities, the appellant can not insist on appointment of
H
                  J.N. BANAVALIKAR 1-. M.C.D. [G.N. RAY.].]                    13

    a specialist in chest diseases as Medical Superintendent of RBTB Hospital       A
    by way of implementation of a policy. In the absence of any rule or
    administrative policy decision, selection of Medical Superintendent of the
    hospitals under the Corporation remains a prerogative of the Corporation,
    we may also indicate that efficiency of a doctor in discharging the function
    of the Medical Superintendent will depend more on his administrative
    capability than on his skill and specialisation in a particular stream of       B
    medical science.
;

           The appellant therefore, cannot be heard to contend that only a
    specialist in tuberculosis and heart diseases is to be made Medical Super-
    intendent of RBTB Hospital and any departure from such appointment is           c
    per se unjust, improper and arbitrary thereby warranting interference by
    this Court. The High Court in our view, is justified in holding that the
    appellant had no vested right to continue as Medical Superintendent of the
    said Hospital simply because he was given the assignment of Medical
    Superintendent and allowed to hold the said office of Medical Superinten-
    dent for a long time. We may however, indicate here that the post of            D
    Medical Superintendent in a hospital 1s umque in status, dignity and
    responsibility more so when the incumbent not only discharges his func-
    tions as a specialist but also performs administrative control of the entire
    hospital. But as in our view, the appellant cannot claim as a matter of right
    to hold the office of Medical Superintendent which is not a promotional         E
    post or a post in a special cadre and as a specialist admittedly senior to
    the appellant in the integrated cadre of specialist Grade I has been given
    the assignment of Medical Superintendent of RBTB Hospital without
    affecting his position as the Head of the Department in his speciality, the
    appellant cannot challenge the appointment of Dr. Patnaik as Medical
                                                                                    F
    Superintendent in RBTB Hospital and consequential removal of the ap-
•   pellant as Medical Superintendent by contending that such appointment is
    per se illegal, improper, unjust anJ arbitrary.


          Dr. Dhavan has ho\vever contended that even if the administration
    was competent to appoint Dr. Patnaik as Medical Superintendent by
                                                                                    G
    removing the appellant from the said post, the action of the respondcnt-
    Corporalion must be consistent with reasonahleness and fairplay and in·
    formed by exigency of administration. Merely because the Corporation has
    authority to appoint Dr. Patnaik and remove the appellant, it will not be
    permitted to do so on its zj1se dixit unconnected \Vith any public purpose      H
    14                    SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A or genuine administrative exigency warranting such cause of action.

          No exception can be taken to ~uch contention of Dr. Dhavan as an
    abstract proposition of constitutional safeguard against arbitrary action on
    the part of Government and public bodies. There is no manner of doubt
    that administrative decision of government and public bodies will not only
B   be consistent with the competence to take decision but such decision
    should also conform to fairness in action. Such fairness must be
    demonstrable with full transparency if a challenge of such action on the
    vice of arbitrariness or on the ground of ma/a fide is made. If the ad-
    ministration of a public body or a government takes a decision which can
c   be demonstrated as lacking in reasonableness and fairplay or tainted with
    n1a/a fide or arbitrariness, such ad1ninistrative action even if made by a
    competent authority, offends the pervasive protection under Article 14 of
    the Constitution of India against ma/a fide and arbitrariness in the
    governmental action and action of the public bodies, in our view, the
    appellant would be entitled to ask for quashing the impugned action of his
D
    removal from the post of Medical Superintendent if it can be demonstrated
    to the satisfaction of the court that such action had been taken without any
    reasonable basis and not being informed by administrative exigency but
    merely on the caprice and ipse dixit of the concerned authority or being
    actuated by malafide intention. In that event, the consideration of the right
E   of the appellant to continue in the post of Medical Superintendent will not
    be germane because having been lawfully appointed by the competent
    authority, the appellant cannot be removed by any illegal and improper
     action offending Article 14 of the Constitution. To be more precise, any
     action contrary to protection enshrined under Article 14 of the Constitu-
    tion is per se void an<l not to be countenanced as existing.
F

          In the facts and circumstances of this appeal, it is not possible to hold   •
    that the impugned action in removing the appellant and appointing Dr.
     Patnaik is unfair or unjust or irrational or arbitrary or tainted \vith any
    malafide intention. The contention of the appellant that in order to accom-
G modate a junior doctor as Medical Superintendent in l.D. Hospital, Dr.
     Patnaik had been moved out from the said hospital to replace the appellant
     as Medical Superintendent of RBTB Hospital, is not only vague but lacks
     in particulars forming the foundation of such contention. Further, in the
     absence of impleadment of the junior doctor who is alleged to have been
H    favoured by the course of action leading to removal of the appellant and
                   J.N. BANAVALIKAR v. M.C.D. [G.N. RAY,J.]                      15

     the person who had allegedly passed malafide order in order to favour such A
     junior doctor, any contention of ma/a fide action in fact i.e. malice in fact
     should not be countenanced by the court. This appeal therefore, fails and
     is dismissed without any order as to costs.

           Before we part, we may, however, indicate that the appellant having
     rendered long and useful service as a specialist Grade I and having been          B
     given supertime. scale in the cadre of specialist Grade I in recognition of
.'   his meritorious service, cannot be blamed for having legitimate aspiration
     to hold the position or status and dignity, unique in the set up of a hospital,
     as Medical Superintendent. It is reasonably expected that the concerned
     authority will be alive to such legitimate aspiration of the appellant and will   C
     consider his case of appointment as Medical Superintendent whenever an
     occasion for such consideration would arise, dispassionately and without
     being influenced by the result of this appeal.

     K.T.                                                       Appeal dismissed.


)