Holding

Junior teacher appointments must be made by the Selection Board on the basis of merit and suitability, not solely on character rolls, and the Board lacks authority to prescribe selection criteria absent express rule‑making power under Article 309.

Summary

The appellants, who were Homeopathic Medical Officers, were appointed as junior teachers in a government homeopathy college under the Orissa Homeopathy Medical Teaching Service Rules, 1980. Their appointments were challenged on the grounds that the Selection Board had not consulted the Public Service Commission, that selection was based solely on confidential character rolls, and that candidates were not allocated to specific disciplines. The Supreme Court held that the 1984 amendment removed the requirement of PSC consultation for junior teacher appointments, that non‑allocation to disciplines does not invalidate selection, and that the Selection Board cannot unilaterally set selection criteria such as relying only on character rolls. The Court affirmed that selection must be based on merit, knowledge, organization of thought, and presentation skills, and directed the appellants to continue on an ad‑hoc basis until a fresh merit‑based selection is conducted.

Issues considered

The validity of the Selection Board's reliance solely on confidential character rolls for appointing junior teachers.
Whether the Public Service Commission's approval is required for junior teacher appointments under the 1980 Rules as amended.
Whether the failure to allocate selected candidates to specific college disciplines vitiates the selection.

Legislation cited

Constitution of Indias. Article 162, s. Article 309, s. Article 73
Homoeopathy Central Council Acts. 1973

Subjects

recruitmentselection boardjunior teachershomeopathypublic service commissioncharacter rollsmerit selectionArticle 309administrative law

Judgment

DR. KRUSHNA CHANDRA SAHU AND OTHERS A
v.
STATE OF ORISSA AND OTHERS

SEPTEMBER 8, 1995

(S.C. AGRAWAL ANDS. SAGHIR AHMAD, JJ.] B

SeTVice Law:

Orissa Homeopathy Medical Teaching SeTVices (Methods of Recruit-
ment and Conditions of SeTVice) Rules, ,_980-Rules 6, 7 & 8-Appointment C
to the Post of Junior Teachers-Recruitment to the post of Junior Teachers
made on the basis of selection held by the Selection Board need not be in
consultation with the Public SeTVice Commission-However such selection
cannot be made on the sole basis of candidates' character Rolls-Qualities
required for teaching post-Laid down.
D
Powers of Selection Committee-Selection Committee or Selection
Board cannot be held to have jurisdiction to lay down any standard or basis
for selection as it would amount to legislating a rule of selection.

The Appellants who had obtained Diploma in Homeopathic
Medicine and Surgery, and the Respondents S and 6 who had obtained E
Degree in Bachelor of Homeopathy Medicine & Surgery were originally
working as Homeopathic Medical Officers in the State of Orissa.

In 1985, the appellant were recruited as Junior Teachers in the Dr.
Abin Chand Homeopathic Medical College and Hospital, Bhubaneshwar. F
When a challenge was made to their recruitment by respondents S & 6 the
High Court quashed their selection on the ground that the selection was
not made by a proper Selection Board and directed the State to conduct
fresh selection.

On constituting a fresh Selection Board and on reconsideration the G
appellants were again appointed as Junior Teachers/Demonstrators. This
was again challenged before the Tribunal and the Tribunal quashed the
selection on the following grounds

(a) the candidates who were selected by the Selection Board had to
be approved by the Public Service Commission; H
419
420 SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.

A (b) the selection was vitiated by the method adopted in as much as
it was solely based on the character rolls; and

(c) the candidates should have been allotted to different disciplines
available in the College.
11

B The appellants viz. the candidates and also the State in a separate
Appeal contended that rule 5 of Service Rules 1980 as to selection of Junior
Teachers does not require the consultation with the commission, and that
the Tribunal could not sit in judgment over the selection process and that
the non-assignment of different disciplines does not vitiate the selection
c itself.

Disposing of the Appeals, this Court

HELD : 1. The Rules 6, 7 and 8 of the 1980 Rules which deal with
promotion to the post of lecturers and principal of Homeopathic,Colleges
D do not apply to the recruitment of Junior Teachers. [430-F]

2. The selection of candidates is not vitiated by their non-allocation
to various disciplines in the college or by not determining the vacancies
discipline-wise before selection, as it is always open to the Colleges
authorities to allocate the appellants to different disciplines even after
E selection. [431-H]

3. The selection Committee does not have the jurisdiction to lay down
the criteria for selection unless they are authorised specifically in that
regard by the rules made under Article 309. [433-G]
F 4. The following three criteria are to be followed for appointment on
a teaching post viz.

(a) he should have thorough knowledge of the subject concerned;

G (b) he should be organised in his thoughts; and

(c) he should possess the art of presentation of his thoughts to the
students. [435-D]

5. The Character Rolls cannot form the SOLE basis for determina-
H tion of suitability for the post of junior teachers. [435-F-G]
KC. SAHU v. STATE OF ORISSA [S. SAGHIR AHMAD, J.] 421

6. The basis of character rolls adopted by the selection Board was A
wholly arbitrary besides being without authority or jurisdiction. [436-F]

7. The selection should have been held on a criteria which was
inclusive of the merits so that the best and most suitable could have been·
selected. [436-G]
B
Liladhar v. State of Rajasthan, (1981) 4 SCC 159 and Ashok Kumar
Yadav's case (1984) 4 SCC 417, affirmed.

PeTVez Qadir v. U.O./. and Others, (1975) 4 SCC 318 and R.S. Dass
v. U.O.I & Ors., AIR (1987) SC 593, distinguished.
c
Dalpat Abasaheb Solunke and Others v. Dr. B.S. Mahajan & Ors.,
(1990) 1 SCC 305; State of A.P. & Anr. v. V. Sadanandam and Others AIR
(1989) SC 2060; Ramachandra Iyer & Ors. v. U.O./. & Ors. (1984) 2 SCR
200; Umesh Chandra Shukla Etc. v. U.O./. & Ors., (1985) 2 SCR 367; Sh.
Durga Charan Misra v. State of Orissa and Others, (1987) 2 UJSC 657 and D
B.S. Yadav and Others v. State of Haryana & Ors., AIR (1981) SC 561;
referred to.

[This Court issued directions to the State to conduct fresh selection
after amendment of the rules or after issuing necessary instructions taking
into consideration the observations in the judgment and to continue the E
appellants on ad-hoc basis till fresh selections were made. [437-B-C}

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8164 of
1995 Etc.

From the Judgment and Order dated 14.5.90 of the Orissa Ad- F
ministrative Tribunal in O.A.No. 187 of 1987.

A.K. Panda, P.N. Misra, A. Mariarputham, Ms. Arona Mathur, C.S.
Srinivasa Rao and J.S. Wad, for the appearing parties.

The Judgment of the Court was delivered by G
S. SAGHIR AHMAD, J. Special leave granted.

The controversy in these cases relates to the appointment of the
appellants in· Civil Appeal No. 8164/95 arising out of SLP (C) No. 13002
of 1990 as junior teachers in Dr. Abin Chand Homeopathic Medical H
422 SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A College and Hospital, Bhubaneshwar (for short, 'College') affiliated to the
Utkal University who, since their appointment, are constantly involved in
litigation as their appointments were first challenged in two Writ Petitions
namely, OJC Nos. 2217 of 1984 and 19 of 1985 in the Orissa High Court
which by its judgment and order dated 30th July, 1985 partially allowed the
B petitions and quashed their selection on the ground that the Selection
Board was n6t constituted in accordance with the provisions contained in
rule 5(1) of the Orissa Homeopathy Medical Teaching Service (Methods
of Recruitment and Conditions of Service) Rules 1980 and issued direc-
tions for fresh selection and thereafter when the petitioners were again
selected, their appointment, this time, was challenged before the Orissa
C Administrative Tribunal which, by its judgment and order dated May 14,
1990, quashed their appointment and ordered that they would continue on
ad hoc basis until a final selection was made by the Orissa Public Service
Commission. It is against this judgment that the appeal No. 8164/95 arising
out of SLP No. 13002 of 1990 has been filed.
D
Appeal No. 8166/95 arising out of SLP (C) No. 474 of 1991 has been
filed by the State of Orissa against the same Judgment of the Tribunal
passed on May 14, 1990. Subsequent to the judgment dated May 14, 1990,
a Review Petition was filed before the Tribunal in so far as it related to
the following direction :
E
"Government may send the names of candidates who have opted
according to the seniority 3 to 4 times the number of vacancies
with their academic ·qualification in all examinations along with
1
CCR for consideration."
F
The Tribunal by its judgment and order dated August 16, 1990, allowed
the Review Petition and passed the following direction :

"We, therefore, direct that the Selection Board under rule 3
make the selection on merit of all eligible candidates on a proce-
G dure prescribed by ·the State Government preferably through a
competitive examination and for)Vard 3 to 4 times the names to
the Public Service Commission for their final selection. We are
sorry that the various amendments made to the 1980 Rules have
not been consolidated into one rule causing this error on our part.
H The error occurred because the three amendments made to the
KC.SAHU v. STATEOFORISSA[S.SAGHIRAHMAD,J.) 423

Rules escaped our attention. Since the procedure suggested by us A
now would be more dilatory than was contemplated earlier accord-
ing to our direction, the process should be completed within a
year."

This order has been challenged in appeal No. 8165/95 arising out of SLP
(C) No. 14868 of 1990. B

This Court while issuing notice on the SLPs had directed that status-
quo as on november 26, 1990, with regard to selection in pursuance of the
Judgment of the Orissa Administrative Tribunal, shall be maintained.
During the pendency of the SLPs, the State Government intended to make C
promotions on the posts of lecturers from amongst the Junior teachers but
the Tribunal by its interim order dated 12.8.1992 which was, allegedly,
passed without notice to the appellants, restrained the State Government
.from making any promotion on the posts of lecturer on the ground that
such promotions would result in violation of this Court's Order regarding
"Status quo". Appeal No. 8167/95 arising out of SLP (C) No. 14340of1992 D
is directed against this order (dated 12.8.92) of the Tribunal.

Leave has been granted in all the SLPs and they have been heard
together for final disposal with appeal No. 8164/95 arising out of SLP(C)
No. 13002 of 1990 being the leading case. E

The appellants had obtained Diploma in Homoeopathic Medicine
and Surgery from Orissa Board of Homoeopathic Medicine recognised by
the Central Council constituted under the Homoeopathy Central Council
Act, 1973 and were, thereafter, appointed as Homoeopathic Medical Of-
ficers in the State of Orissa where respondents 6 & 7 who had obtained F
Degree of Bachelor of Homoeopathic Medicine and Surgery from the
College were also appointed as Homoeopathic Medical Officers.

Induction of Medical Officers into teaching jobs is regulated by the
Orissa Homoeopathic Medical Teaching Service (Methods of Recruitment G
and Conditions of Service) Rules, 1980 (for short, Rules) made by the
Governor of Orissa in exercise of power conferred by the proviso to Article
309 of the Constitution. These Rules regulate the appointments on the post
of "junior teacher", "lecturer" and "principal" in the Homoeopathic Medical
Colleges. We are, in the present case, concerned with the appointments
made on the posts of "junior teachers". H
424 SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A Appellants who were already serving as Medical Officers were ap-
pointed on the posts of junior teachers on the basis of selection held in
1984-85. Their appointment was challenged by respondents 6 & 7 through
Writ Petitions filed in the Orissa High Court which by its judgment and
order dated 30.7.1985 set aside the appointments with the following find-
ings:
B
"In view of the above, we have no hesitation to hold that
constitution of the Selection Board which interviewed candidates
for appointment to posts of Junior Teachers in the Homoeopathic
College on 28-12-1984, 29-12-1984, 31-12-1984, 6-1- 1985 or on any
c other date was in contravention of Rules 5(1) of the Rules and
therefore, it was illegal and unconstitutional. Any selection made
by the Selection Board shall be bound to be invalid in the eye of
law. Therefore, the selection made by the Selection Board, if any,
is liable to be quashed. The second contention accordingly suc-
ceeds."
D
The High Court, however, did not accept the other contention raised
by the respondents 6 & 7 that the appellants being mere diploma holders,
were not qualified and eligible, and, therefore, ought not to have been
considered.
E A fresh selection Board, as directed by the Orissa High Court was
constituted which, on a reconsideration of all those candidates who had
originally opted/applied for the posts of junior teachers, again selected the
appellants, as also two others, and, thus, they came to be appointed as
Demonstrators in the College on regular basis but their (regular) appoint-
F ment was set aside by the Tribunal with a positive finding that after
selection by the Selection Board constituted under Rule 5, the candidates
had to be finally selected by the Public Service Commission as required by
Rule 10 and since petitioners were directly appointed on the posts of
Junior teachers immediately after being selected by the Selection Board
G without the matter being placed before the Commission for final selection,
their regular appointment was vitiated. The selection was also found
vitiated by the mode and manner, or, to put it differently, the procedure,
adopted by the Tribunal at the selection.

The Tribunal held the selection to be vitiated for two more reasons,
H namely that it should have been made on the basis of merit and not merely
K.C. SAHU v. STATE OF ORISSA (S. SAGHIR AHMAD, J.] 425

on the basis of confidential character rolls of the candidates (Medical A
Officer) and, secondly that the candidates should have been allotted to
different disciplines available in the College.

It is stated on behalf of the respondents which is not disputed by the
appellants that appellant no. 1 is dead while appellant No. 6 has since
opted out and had gone back to his original post of Homoeopathic Medical' B
Officer.

Learned counsel appearing on behalf of the appellants as also the
counsel appearing on behalf of the State of Orissa have assailed the
judgment of the Tribunal and questioned the correctness of the findings C
recorded on various issues and have contended that the Tribunal was in
error in its conclusion that the selection of candidates for appointment on
the posts of junior teachers was finally to be made by the Public Service
Commission and also that the Tribunal was not correct in recording a
finding that the selection of the petitioners W?-S vitiated by the procedure
adopted by the Selection Board or by non-assignment of various disciplines D
to the seleced candidates. Counsel for respondents 6 & 7 who had filed
the claim petition before the Tribunal, has, on the contrary, contended that
the judgment of the Tribunal was unassailable and that the Selection Board
was wholly in error in determining the suitability of the candidates on the
basis of their confidential character rolls.
.
'
E
Let us first analyse the scheme of the Rules.

There are two categories of teaching posts, namely, "junior teaching
posts" and "senior teaching posts" in the Homoeopathic Medical Colleges
as defined respectively in Rule 2(d) and 2(g) as under: F
"2(d). "junior teaching posts" means the posts of Clinical
tutors, demonstrators and such other posts which may
be declared by Government as junior teaching posts."

"2(g). "Senior teaching posts" Means the posts of Lecturers G
and Principals of the Government Homoeopathic
Medical Colleges."

Rule 3 provides as under :

3 Recruitment to posts of Junior Teachers shall be made H
426 SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A from amongst the eligible Homoeopathic Medical Of-
ficers found suitable by the Selection Board."

"Selection Board" is defined in Section 2(h) as under :

"2(h). "Selection Board" means the Selection Board con-
B stituted under Rule 5.

Constitution of the Selection Board is indicated in rule 5 as under :

5.(l)(a)The Selection Board for the purpose of selecting junior
teachers shall consists of :
c (i) Director of Indian Medicine and Homoeopathy,
Orissa, Bhubaneshwar

(ii) Deputy Secretary to Government, Health & Family
Welfare Department
D
(iii) Principal-cum-Superintendent, Dr. Abin Chandra
Homoeopathic Medical College, Bhubaneshwar

(iv) Establishment-cum-Accounts Officer of the Direc-
torate of Indian Medicine and Homoeopathy, Orissa,
E Bhubaneshwar

(b) The Selection Board for the purpose of selection of
Senior Teachers shall consist of

(i) The Secretary to Government, Health & Family
Welfare Department

(ii) Director of Indian Medicine and Homoeopathy,
Orissa, Bhubaneshwar

(iii) Deputy Director, Homoeopathy
G
(iv) Deputy Secretary to Government, Health & Family
Welfare Department

(2) The Selection Board may co-opt another member or
members of the rank of lecturer who has not less than
H ten years of experience as such,"
K.C. SAHU v. STATE OF ORISSA [S. SAGHIR AHMAD, J.] 427

Rule 5, prior to its amendment in 1984, read as under : A
''5. (1) The Selection Board shall consists of :

(a) The Chairman of the Commission or a Member of
the Commission nominated by Commission as Presi-
dent. B
(b) Director of Indian Medicine and Homeopathy,
Orissa or an officer nominated by him, to be a member
and

(c) Principal of the Government Homeopathic Medical c
College or an officer nominated by him as a member

(2) The Selection Board may co-opt another member or
members of the rank of lecturer who has not less than
ten years of experience as such".
D
A perusal of Rule 3 quoted above indicates that appointment on the
posts of Junior teachers has to be made from amongst the eligible
Homoeopathic Medical Officers found suitable by the Selection Board.
Eligibility has been indicated in Rule 4 as under :

"4. A Homoeopathic medical officer shall be eligible for the post E
of Junior Teacher if he has -

(a) a recognised Horioeopathic Qualification from one of
the Homoeopatliic I~stitutions included in the Second
Schedule of the Homoeopathic Central Council Act, F
1973 and

(b) atleast one year's service in that capacity from the date
of his regular appointment as such."

"Recognised Homoeopathic Qualification" has also been defined in G
th..::;~ Rules and the definition is contained in Rule 2(f) as under :

"2(f). "Recognised Homoeopathic Qualification" means
... qualification obtained in Homoeopathy from any recog-
nised University, Board or other Medical Institutions
in India included in the Second Schedule to the H
428 SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A Homoeopathic Central Council Act, 1973 and the
Medical qualification granted by Medical Institutions
outside India which are included in the Third Schedule
of the said Act."

Rule 10 provides as under :
B
"10. The Seniority of the Junior Teachers shall be according
to the ranking given to them at the time of the selection
by the Selection Board.

The Seniority of Senior Teacher and Principal shall
c be in the order in which their names appear in the final
select list at the time of their appointment."

We may also quote Rules 6, 7 and 8 as we shall refer to these Rules
during the course of our judgment.
D
"6. Recruitment to the Posts of Lecturer shall be made by promo-
tion from amongst the regularly appointed Junior Teachers
in consultation with the commissions."

"7. (i) A Junior Teacher for being eligible for the post of Lecturer
E shall hold a degree of diploma in Homoeopathy Science after
a four year's course in a recognised Homoeopathic Institution
in India included in the Second Schedule of the
Homoeopathic Central Council Act, 1973 and

(ii) have rendered not less than five years regular continuous
F service against the post of Junior Teacher from the <late of
his regular appointment to that post. Preference may be given
to candidates possessing foreign qualification included in the
Third Schedule of Homeopathic Central Council Act, 1973."

"8(1) Recruitment to the post of Principal of Homeopathy College
G
shall be made by promotion from amongst eligible lecturers
on the basis of merit and suitability with due regard to
seniority and Administrative ability in consultation with the
comm1ss1on.

H A lecturer to be eligible for promotion must have ten years
K.C. SAHU v. STATE OF ORISSA [S. SAGHIR AHMAD, J.] 429

regular continuous service in a post of lecturer from the date A
of his regular appointment to the post in accordance with the
recruitment rule."

(2) The Selection Board constituted under rule 5 will con-
sider the cases of the eligible officers on the basis of
the record of service, qualification, experience and the B
like for this purpose the Government and the con-
cerned authorities shall furnish to the Board up-to-date
character rolls, particulars of their qualifications and
such other information and document as the Board may
require. c
(3) The Selection Board will prepare a list of Officers they
consider suitable for promotion in the order of their
preference. The number of officers to be included in
the list will be such as will be considered sufficient to
cover the vacancies which exist or likely to occur in that D
year and the next year with a reserve as may be neces-
sary. The Board will submit its list along with docu-
ments, received by it together with a list of officers who
are proposed to be superceded to the Commission. The
Commission will submit to the Government the list with E
its recommendation as to such changes in the list as it
considers necessary for approval of Government. The
said list of officers who constitute the final select list
after approval of Government. The select list will be
valid for two years or till a fresh list is prepared
whichever is earlier. F
Provided that the Government may in consultation with
the Commission remove from the list the name of any
Officer whose work and concept deteriorate to such an
extent that the Government consider him unfit to con- G
tinue in the list of appointment of officers shall be made
to the respective posts in the order in which their
number appear."

The Rule~. indicate that while the pose of junior teachers are to be
filled up by direct recruitment from amongst the eligible Homoeopathic H
430 SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A Medical Officers, the post of lecturers and that of the principal are to be
filled up by promotion. The post of lecturer is the promotion post for junior
teacher while the post of principle is the promotion post for lecturers.
Promotions on the post of lecturer and appointment on the post of Prin-
cipal (by promGltion) can be made only in consultation with the Commis-
sion.
B
Recruitment on the post of junior teachers under the Rules, saw they
originally stood, was also to be made in consultation with the Commission
but the words, "in consultation with the Commission" occurring in Rule 3
were deleted and substituted by the words "found suitable by the Selection
c Board" through amendment vide Government Notification dated May 8,
1984 issued by the Government under Article 309 of the Constitution with
the result that the requirement to consult the Commission ceased to be
obligatory from the date of amendment.

Appointments on the teaching posts m the State Homoeopathic
D Medical Colleges are thus made through two different modes and agencies.
While appointment on the posts of junior lecturers and made on the basis
of suitability determined by the. Selection Board, the senior teaching posts
are filled up by promotion through initial selection by the Selection Board
followed by the final selection by the Orissa Public Service Commission.
E The Tribunal on the basis of Rule 8(2) read with Rule 10 has found
that fmal selection in the matter of appointment on the post of junior
teachers has also to be made by the Commission. This, in our view, is not
correct. We have already pointed out above that recruitment on the post
of Junior teachers is made on the basis of selection held by the Selection
F Board and not in consultation with the Commission. Sub-rule (2) of Rule
8 cannot be invoked in the matter· of recruitment on the posts of junior
teachers as whole of Rules 6, 7 & 8 deal with promotion on the post of
lecturers and Principal.

Rule 6 provides that recruitment on the post of lecturer shall be
G made by promotion. Rules 7(i) and (ii) provide for the eligibility of junior
teachers for their appointment as lecturer. Rule 8(1) in its first part
provides that recruitment on the post of principal shall be made by promo-
tion from amongst eligibl~ lecturers on the basis of merit and suitability
with due regard to seniority and administrative ability, in consultation with
H the Commission. Second part of Rule 8(1) lays down eligibility criteria for
KC. SAHU v. STATE OF ORISSA [S. SAGHIR AHMAD, J.] 431

lecturers for promotion on the post of Principal. Sub-rule (2) of Rule 8 A
provides that the Selection Board constituted under Rule 5 shall consider
the cases of all eligible officers on the basis of record of service, qualifica-
tion, experience and the like and thereafter under Rule 8(3) if it is provided
that the Selection Board shall prepare a list of officers found suitable for
promotion and send that list to the Orissa Public Service Commission
B
which, in its turn, shall send the list together with the changes, if any
proposed by it, to the Government for its approval. The list on being
approved by the Government, becomes the Select List which remains valid
for two years or till a fresh list is prepared, whichever is earlier. These
provisions, as indicated above, apply to promotions either on the post of
lecturer or Principal and not to the appointments on the post of junior c
teachers for the obvious reason that such appointments are not required
to be made "in consultation with the commission", and the Commission,
therefore, does not have any role in this process with the result that
appointments on the posts of junior teachers can be made directly after
the suitability of the candidates is adjudged by the Selection Board.
D
Even Rule 10 which provides that the seniority of junior teachers
shall be determined on the basis of rankings given to them at the time of
their selection by the "Commission", cannot be pressed in aid of tJhe
contention that Commission has still a vital role to play in the matter of
selection as it has already been pointed out above that Rule 3 was ameni;led E
and the words "in consultation with the Commission" occurring therein
were deleted with the result that the posts of junior teachers, ceased to be
within the purview of the Commission with effect from May 8, 1984. By
another Notification dated Feb. 20, 1993 issued under Art. 309 of thq
constitution, Rule 10 was amended with retrospective effect (from 8.5.84) F
and the word ''Commission" was substituted by the words "Selection Board"
indicating clearly that when Rule 3 was· amended in 1984, there was an
unconscious omission to amend Rule 10 which, as pointed out above, has
since been done and the "Commission" has been totally excluded from the
selection scenario. The findings, recorded to the contrary, by the Tribunal
in its judgment dated 14.5.90 and reiterated in its order dt. 16.8.90 passed G
on the Review Petition are not correct. We also do not agree with the
Tribunal that selection of the appellants is vitiated by their non-allocation
to various disciplines in the college or by not determining the vacaucies
discipline-wise before selection as it is always open to the college
authorities to allocate the petitioners to different disciplines even after H
432 SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A selection.

Coming now to the merits of the selection, we may, at the outset,
indicate that the decision of Selection Committee can be interfered with
only on limited grounds, namely, that there was illegality or material •
irregularity in the constitution of the Committee or in its procedure vitiat-
B ing the selection of proved malafides affecting the selection etc. as laid
down by this Court in Dalpat Abasaheb Solwike & Ors. v. Dr. B.S. Mahajan
& Ors., [1990] 1 SCC 305. Let us, therefore, examine whether the selection,
in the instant case, is vitiated by any of these factors as also by the "Basis",
"Mode & Procedure", allegedly, arbitrarily adopted by the Selection Board
c in adjudging the suitability of Medical Officers for their appointments on
teaching posts.

The Tribunal has quoted the minutes of the proceedings of the
Selection Board in its judgment dated 14.5.90 and it will be useful to
D reproduce the proceedings here as well :

"The Board· dei:;ided that selection to the post of Demonstrators
should be made from amongst the eligible Homoeopathic Medical
Officers strictly according to merit and suitability with due regard
to seniority. The Chairman Pointed out that since the recruitment
E Rules do not provide specific principle and guideline to judge the
merit and suitability of the candidates the same should be judged
basing from the C.C.Rs. of the candidates. This is because they
have the requisite qualification and prescribed one year service to
their credit. Their performance and suitability is reflected in their
F C.C.Rs from year to year. To this contention Dr. K.K.Kar, Prin-
cipal-cum- SuperintendeJ?.t objected in saying that inter alia C.C.R.
may be one of the consideration but cannot be sole consideration
for selection as Demonstrator. He further said that for teaching
job academic knowledge and achievement and eloquency on the
subject is very much required for which an interview needs to be
G conducted. The chairman and the other Member of the Selection
Board differing from this contention of Dr. Kar opined that inter-
view for a short time cannot be helpful to assess correctly the
suitability of the candidates so far knowledge and eloquency is
concerned. Therefore after discussion on Dr. Kar's objection
H Chairman and other Member opined that When C.C. Rs. of can-
K.C. SAHU v. STATE OF ORISSA [S. SAGHIR AHMAD, J.] 433

didate, Homoeopathic Medical Officers are available interview for A
short while will not be sufficient to judge their suitability. Therefore

- it is decided that it is not necessary to assess the academic
knowledge and eloquency by conducting a personal interview
C.C.Rs. will be the sole guide to judge the merit-cum- suitability
with due regard to seniority............. "
B
The proceedings indicate that since Rule 3 was silent as to the
guidelines on the basis of which suitability of the candidate was to be
adjudged, the members constituting the Selection Board, by a majority
• decision, resolved to determine the suitability on the basis of conficlential
character rolls of the candidates who were already employed as C
Homoeopathic Medical Officers.

Now, power to make rules regulating the conditions of service of
persons appointed on Govt. Posts is available to the Governor of the State
under the Proviso to article 309 and it was in exercise of this power that
the present rules were made. If the statutory Rules, in a given case, have D
not been made, either by the Parliament or the State Legislature, or, for
that matter, by the Governor of the State, it would be open to the ap-
propriate Government (the Central Government) under Article 73 and the
State Government under Article 162) to issue executive instructions. How-
ever, if the Rules have been made but they are silent on any subject or E
point in issue, the omission can be supplied and the rules can be supple-
mented by executive instructions. See" Sant Ram v. State of Rajasthan,
(1967) SC 1910.

In the instant case, the Government did neither issue any administra-
tive instruction nor did it supply the omission with regard to the criteria F
on the basis of which suitability of the candidates was to be determined.
The members of the Selection Board, of their own, decided to adopt the
confidential character rolls of the candidates who were already employed
as Homoeopathic Medical Officers, as the basis for determining their
~~~ G
The members of the Selection Board or for that matter, any other
Selection Committee, do not have the jurisdiction to lay down the criteria
for selection unless they are authorised specifically in that regard by the
rules made under Article 309. It is basically the function of the Rule making
authority to provide the basis for selection. This Court in State of Andhra H
434 SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A Pradesh and Another v. V. Sadanandam and Others, AIR (1989) SC 2060,
observed as under :

"We are now only left with the reasoning of the Tribunal that there
is no justification for the continuance of the old rule and for
personnel belonging to either zones being transferred on promo-
B tion to offices in other zones. In drawing such conclusion, the
Tribunal has travelled beyond the limits of its jurisdiction. We need
only point out that the mode of recruitment and the categ01y from
which the recmitment to a se1vice should be made are all matters
which are exclusively within the domain of the executive. It is not
c for judicial bodies to sit in judgment over the wisdom of the
executive in choosing the mode of reC1uitment of the categolies from
which the recrnitment should be made as they are matters of policy

D
decision falling exclusively within the pwview of the executive."
(Emphasis supplied)

The Selection Committee does not even have the inherent jurisdic-
•
tion to lay down the norms for selection nor can such power be assumed
by necessary implication. In Ramachandra Iyer & Ors. v. Union of India &
Ors., (1984) 2 SCR 200, it was observed:
,>-
"By necessary inference, there was no such power in the ASRB
E
to add to the required qualifications. If such power is claimed, it
has to be explicit and cannot be read by necessary implication for /
the obvious reasons that such deviation, from the rules is likely to
cause irreparable and irreversible harm."

F Similarly, in Umesh Chandra Shukla Etc. v. Union of India & Ors.,
[1985] 2 SCR 367, if was observed that the Selection Committee does not
possess any inherent power to lay down its own standards in addition to
what is prescribed UI).der the Rules. Both these decisions were followed in
Sh. Durgacharan Misra v. State of Olissa & Ors., (1987) 2 UJSC 657 and
G the limitation of the Selection Committee were pointed out that it had no
jurisdiction to prescribe the minimum ·marks which a candidate had to
secure at the viva-voce test.

It may be poinfed out that rule making function under Article 309 is
legislative and not executive as was laid down by this Court in B.S. Yadav
H & Ors. v. State of Ha1yana & Ors., AIR 1981 SC 561. For this reason also,
K.C. SAHU v. STATE OFORISSA[S.SAGHIRAHMAD.J.] 435

the Selection Committee or the Selection Board cannot be held to have A
jurisdiction to lay down any standard or basis for selection as it would
... amount to legislating a rule of selection .

If it were a mere matter of transition from one service to another
service of similar nature as, for example, from Provisional Civil Service to
B
All India Forest Service or from Provincial Civil Service to Indian Ad-
ministrative Service, the confidential character rolls could have constituted
a valid basis for selection either on merit or suitability as was laid down by
this Court in Pe1vez Qadir v. Union of India & Ors., [1960J2 SCR 432 =AIR
(1975) SC 446 = (1975] 4 SCC 318, w~ich has since been followed in R.S.
Dass v. Union of India & Ors., AIR (1987) SC 593. But in the instant case, c
appointments are being made on posts in an entirely new service, though
the educational qualifications required to be possessed by the candidates
are the same as were required to be possessed in their earlier service.

A candidate in order to be suitable for appointment on a teaching D
post must have at least three qualities; he should have thorough knowledge
of the subject concerned; he should be organised in his thoughts and he
should possess the art of presentation of his thoughts to the students. These
qualities cannot possibly be indicated or reflected in the confidential
character rolls relating to another service, namely, the service in the Health E
Department as Homoeopathic Medical Officers where the character rolls
would only reflect their integrity, their punctuality, their industry and their
evaluation by the Reporting or the Accepting officer recorded in the
annual entries. True it is that the candidates being already serving officers,
their character rolls have to be looked into before inducting them in the
F
new service but this can be done only for the limited purpose of assessing
their integrity etc. These character rolls, however, cannot form the SOLE
basis for determination of their suitability for the posts of junior teachers
in the Medical Colleges. Then, what formula or method should be adopted
to assess these qualities is the question which next arises. This Court in
Liladhar V. State of Rajasthan, [1981] 4 sec 159 = AIR (1981) SC 1777, G
pointed out :

"The object of any process of selection for entry into a public
service is to secure the best and the most suitable person for the
job, avoiding patronage and favouritism. Selection based on merit, H
436 SUPREME COURT REPORTS (1995] SUPP.' 3 S.C.R.

A tested impartiality and objectively, is the essential foundation of
any useful and efficient public service. So, open competitive' ex-
amination has come to be accepted almost universally as the
gateway to public services."

It further observed :
B
"It is now will recognised that while a written examination assesses
a candidate's knowledge and intellectual ability, an interview test
is valuable to assess a candidate's overall intellectual and personal
qualities. While a written examination has certain distinct ad-
c vantages over the interview test there are yet no written tests which
can evaluate a candidate's alertness, resourcefulness, depend-
ableness, cooperativeness, capacity for clear and _logical presenta-
tion, effectiveness in discussion, effectiveness in meeting and
dealing with others adaptability, judgment, ability to. make decision,
ability to lead intellectual and moral integrity. Some of these
D qualities may be evaluated, perhaps with some degree of error, by
an interview test, much depending on the constitution of the
Interview Board."

Liladhar's case was approved in As/wk Kumar Yadav's case (1984] 4
E sec 417.
On the basis of these decisions, we are inclined to say that in order
to assess the suitability or real worth of a candidate for the post of junior
teacher in the college, the basis, namely, the character rolls, adopted by
the Selection Board was wholly arbitrary besides being without authority
F or jurisdiction.

We, therefore, agree with the ultimate order passed by the Tribunal
that the selection should have been held on a criteria which was inclusive
of the merits so that the best and most suitable could have been selected.
G It will be noticed that the Orissa High Court in its judgment dated 14.5.90
had already expressed the hope that selection for the post of junior teacher
shall be held on the basis of merit. This judgment has since become final
as it was not challenged anywhere by any of the parties involved in that
case. When, however, a fresh selection was held in pursuance of the
judgment passed by the Orissa High Court, merit was completely ignored
H and the Selection Board proceeded to determine the suitability of the
KC.SAHU v. STATEOFORISSA[S.SAGHIRAHMAD,J.) 437

candidates on the basis of their character rolls although, in the earlier A
selection which has since been set aside by the Orissa High Court, the
suitability was determined on the basis of interview.

We, however, cannot ignore the fact that the petitioners who were
first selected in 1985 and when their selection was set aside by the Orissa
High Court and a fresh selection was held in 1987, they were again selected B
and are working on the post of Junior teachers since then. For having
worked on the post in question for well over 7 years, the petitioners must
have gained sufficient experience, knowledge and expertise in their subject.
The Tribunal while setting aside their selection observed that they shall not
be treated to have been regularly appointed but shall be allowed to C
continue on ad hoc basis so that when a fresh selection is held, the
petitioners or any of them who is not found suitable, may yield place to the
new incumbent who is found ultimately by the Selection Board to be
suitable for the post in question. .

Having regard, therefore, to the totality of the circumstances, we D
dispose of these appeals with the following direction :

(a) The appellants shall continue on ad hoc basis till a fresh selection
is held.

(b) The Government before requiring the Selection Board to hold a E
fresh selection shall either suitably amend the rule or issue necessary
administrative/executive instructions laying down the basis on which the
suitability of the candidates shall be determined keeping in view specially
the observations made by us in this judgment.

(c) At the time of fresh selection or fresh determination of suitability, F
the field of selection shall be restricted to the appellants and respondents
5 & 6 and those who might have opted for this service up to the date of
last selection held by the Selection Board which has since given rise to the
present legal battle.
G
There will be no order as to costs.

V.M. Appeals disposed of.