2009 Supreme(Kar) 345

HIGH COURT OF KARNATAKA
THE HONOURABLE MR. JUSTICE N. KUMAR & THE HONOURABLE MR. JUSTICE B. SREENIVASE GOWDA
Dr. Shivanand
Versus
The State of Karnataka, rep. by the Principal Secretary & Others
Writ Appeal No.2376 of 2007 (S-Res)
Date of Judgment : 09-06-2009

Headnote:LABOUR & SERVICES - Appointment: [N.Kumar & B.Sreenivase Gowda,JJ] Order of merit recommended by a Selection committee of experts - Whether the appointing authority can ignore the order of merit ? Making appointment to an unreserved post - Consideration of - Held, When appointments are based on recommendations of experts, in the absence of mala fides alleged against the experts, the appointing authority should be slow to interfere with the opinion expressed by the experts. Once such committee makes its recommendation in the order of merit in the list of candidates, it is to be respected. It is open to the appointing authority to accept the recommendation or may decline to accept the same. If it were to accept the recommendation it has to make appointment strictly adhering to the order of merit as recommended by the expert committee. Further, However, if any discretion is expressly provided under the statute in the matter of selecting a person recommended by the expert committee, then such discretion could be exercised. Discretion means sound discretion, guided by law or governed by known principles of rules, not by whims or fancy or caprice of the authority. The exercise if discretion should not be arbitrary. The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based. In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law. It is to be pointed out that the Notification issued for appointment made it very clear that the post is to be filled up within the unreserved category. While making appointment under reserved category, first the caste of the person is to be taken into consideration among them, whoever is meritorious is to be selected. Whereas in the case of making appointment to an unreserved post, it merit, and merit alone is the consideration. The caste f the candidate to be appointed is totally irrelevant. This fundamental principle has not been taken into consideration by the 2nd respondent while making the appointment and the Single Judge was not justified in upholding the said contention. In this regard both the Single Judge as well as the 2nd respondent have not taken into consideration the settled legal position and failed to note the impugned action is violative of Article 14 and 16 of the Constitution.

       LABOUR & SERVICES - Appointment: [N.Kumar & B.Sreenivase Gowda,JJ] Appointment of Director in Indira Gandhi Institute of Child Health - Issue of Notification to fill up unreserved single post -constitution of Selection Committee as per General Byelaws - Preparation of a panel of three names in the order of merit - Placing the select list before Governing Council -Governing Council authorised the Chairman to take a decision - Decision of the Chairman appointing the 3rd respondent who was at serial No.2 in the panel of names recommended in the order of merit by the Selection Committee - Issue of Notification appointing 3rd respondent as the Director of the Institute - Challenge to - Dismissal of Writ Petition - Writ appeal against - Authority of the Governing Council to authorise the Chairman t take decision on their behalf in the matter of appointment of Director -Sub-delegation of powers by the Governing Council - Legality of - the maxim "Delegates Non Protest Delegare"- Discussed - Held, In accordance with the maxim delegates non protest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication. A delegate, who has received his authority from the principal, is incompetent to sub delegate his power to some other person or body. From this if follows that unless sub-delegation is authorised by the statute itself, sub-delegation would be bad and any act done by the sub-delegation would be bad and any act done by the sub-delegate would be void. The maxim sets out what is merely a rule of construction of a statute. Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. Where a statute confers a power on collective body, the later cannot delegate that power to be exercised even by one of its own members, in the absence of statutory provision authorizing such sub delegation. Thus, where a statute entrusts a discretionary function to a Board consisting of two or more members, it must be performed by that body jointly and the Board cannot delegate that function to one of its members. Even where the statute itself authorises delegation of a power conferred by it by the statutory authority, the status of the delegate is that of an agent. When sub delegation is not authorised by the parent statute which delegated the power, the order or resolution which authorised sub-delegation become ultra vires and therefore void. As a result, order passed by the sub-delegate also become void. Sub delegation can be sustained if permitted by an express provision or by necessary implication from the statute. The power delegated have to be exercised by the Board and not by its components. When the Bye-laws confer power of appointment with the Governing Council of the Institute, the said power of appointment is to be exercised only by the Governing Council. The bye-law do not provide sub-delegation. Even there is no contrary indication in the bye-law. In the absence of any power of delegation, the Governing Council delegated its power to appoint the Director to the 2nd respondent. It is a clear case of abdication of responsibility in managing the Institute. If the eminent people who were in the Governing Council, did not take any interest and thought of leaving such onerous task to the Chairman, the question would arise, what is the purpose for having a Governing Council, with eminent people on its board? It should be a collective decision. This habit of delegation of authority to one person smacks of authoritarian tendencies and negates the underlying democratic principles, which is behind the formation of these committees. This tendency is to be abjured, as it runs counter to democratic functioning of such institution of national importance. -The finding recorded by the Learned Single Judge that there is authority to delegate, is contrary to the material on record and the same is liable to be set-aside.