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Synopsis

The Supreme Court on February 12, 2025, said the rules prescribing mandatory eligibility criteria to the public post must be applied in a strict manner, as it quashed the appointment of Dr Anil Khurana as chairman of the National Commission for Homeopathy made by the Union government on July 5, 2021 for lacking the requisite experience of 10 years as head of department.

The bench of Justices Dipankar Datta and Manmohan held there was little doubt that the Union government had exercised a power for a purpose that was foreign to that for which the power in law was intended. The court said the act of appointing Dr Khurana as Chairperson despite his not having the requisite experience suffered from malice in law.

"Whenever appointment to a public office is sought to be made, irrespective of the nature of the office, the rules prescribing mandatory eligibility criteria must be applied in a strict manner; after all, every public appointment under Article 16 of the Constitution must be fair, non-arbitrary and reasonable. Tested on this touchstone, the appointment of the third respondent fails to pass muster," the bench said.

Court pointed out he misrepresented his work experience for being considered for the coveted position of Chairperson of the Commission. "What the consequence of an illegal appointment could be, needs no emphasis," the bench said.

Court said it amounts to a fraud on the public to make appointments in departure of either the statutory requirements or a public advertisement.

"Fraud unravels everything. This court, under the Constitution, is the protector of the rights of citizens; to allow a proven fraud to be continued is unthinkable since it goes against reason as well as morality," the bench said.

Additional Solicitor General Vikramjeet Banerjee, appearing for the Union government, in response to the court's query, submitted that the NCH Act did not confer any power of relaxation on the appointing authority. "This obliterates the final beacon of hope for the third respondent," the bench said.

"We hold that in the matter of essential qualifications prescribed by the statute, there should neither be any deviation from the statutory requirements nor the advertisement inviting applications while conducting any selection process, unless power to relax the qualifications is shown to exist," the bench said.

The court's judgment came on an appeal filed by Dr Amargouda L Patil, one of the unsuccessful candidates, who claimed Dr Khurana, as per explanation of Section 4 of the National Commission of Homeopathy Act, 2020 could not have entered the zone of consideration.

"Section 4 of the NCH Act clearly lays down that the candidate must have minimum twenty years of experience in the field of homeopathy, out of which at least ten must be as a ‘leader’. These eligibility requirements cannot be waived off by the administration, since they are mandatory requirements," the bench said.

The single judge bench of the high court, by its judgment and order of January 10, 2024, had accepted the contention of the appellant and quashed the appointment of Dr Khurana. However, the division bench allowed the appeal by the Union government.

Dealing with the appeal, the apex court examined the relevant file and could not trace the precise ‘documents of experience’.

"What appears to be disturbing is the total lack of procedural fairness in the present case," the court said.

The bench explained the court would not sit in appeal over decisions of selecting bodies, however, a limited scrutiny of ascertaining the eligibility of the aspirants and the procedure followed, could be undertaken whether a duly qualified aspirant has been selected and whether the procedure followed was fair and in consonance with statutory rules or not.

The court opined the scope of judicial review, even though limited, is open.

"Merely because the search committee is chaired by the Cabinet Secretary and such committee consists of experts, does not automatically make its recommendation immune from judicial scrutiny; rather, in an appropriate case warranting such scrutiny, the writ court would be justified in its interference with the process," the bench said.

The bench felt no hesitation to hold that there was no material before the search committee on the basis of which the third respondent (Dr Khurana) could have been held to be eligible, having had 10 years’ experience as the ‘head of a department’. "This is considered sufficient to nullify the selection," the court said.

"The appointment of the Chairperson, who is the head of the Commission carries significant importance and affects various stakeholders in the field of homeopathy. Apart from this, the appointment falls within the field of public employment covered under Article 16 of the Constitution read with Article 14 thereof," the bench said.

Court found the determination made was not backed by any concrete evidence and was, therefore, wholly without any basis.

"The instant case showcases an egregious departure from the mandatory requirements prescribed in Section 4 of the NCH Act and the advertisement for the said position and leaves no option but to interfere with the said selection of the third respondent," the bench said.

The court disagreed with the division bench that this was not a case to interfere in, considering, the clear violation of the applicable statutory rules.

"We hold that the division bench grossly erred in failing to consider that mala fides, in the sense of malice in fact, i.e., actual malice, is not the only condition for interference; it is open to a court to interfere when legal malice or malice in law is demonstrated to exist," the bench said.

ASG Banerjee appealed to the conscience of the court, referring to Dr. Khurana's effective and capable discharge of his duties and performance of his functions over the past 42 months, while noting that less than six months remain before he demits office.

"We are afraid, Banerjee’s appeal to our conscience does not commend acceptance," the bench said.

Court directed Dr Khurana to step down forthwith, while clarifying he could continue for a week to complete his pending assignments without, however, taking any policy decision or decision involving finances.

He directed the Centre to undertake fresh process for appointment to the office of Chairperson of the Commission expeditiously.

"Benefits received by him are not touched; however, no future benefit shall enure to him on the basis of the service rendered by him as Chairperson, which stands quashed, beyond seven days from date," the bench said.

Case Title: Dr Amargouda R Patil Vs Union of India & Ors