Anil Kumar Sharma vs Indian Institute Of Technology Roorkee And Others

Ramesh Ranganathan, CJ

This writ petition is filed seeking a direction to summon the records of the proceedings relating to the appointment made to the post of Head of the Department of Management Studies, and to issue a writ of certiorari to quash the order dated 29.03.2019 issued by the second respondent, in so far as it related to the appointment of the seventh respondent as Head of the Department of Management Studies, in the Indian Institute of Technology, Roorkee (the "IIT" for short); a writ of mandamus declaring the action of the third respondent, namely, the Director, IIT Roorkee, as regards selection of the seventh respondent to the post of Head of the Department in Management Studies, as arbitrary and illegal; a writ of mandamus commanding respondent nos. 1 to 3 to re-consider the claim of the petitioner for selection/appointment as the Head of the Department in Management Studies, in IIT, Roorkee, in accordance with law, and as per the standard convention at the earliest, but not later than one month from the date of receipt of a copy of the order of this Court; a writ of mandamus declaring Statute No. 22 (1) of the Statutes of IIT Roorkee, framed under the provisions of the IIT Act, 1961, as arbitrary and as violative of Article 14 of the Constitution of India, in the absence of guidelines framed under Statute No. 22 (1) of the Statutes of IIT Roorkee; and a writ of mandamus commanding respondent nos. 1 to 3 to pay exemplary costs of Rs. 1,00,000/- to the petitioner, for depriving him of his legal and legitimate right of being appointed as the Head of the Department of Management Studies, and thereby causing him humiliation, harassment and pain.

Facts, to the limited extent necessary, are that the Indian Institute of Technology, Roorkee is an Institution established under the IIT Act, 1961, and is under the control of the Ministry of Human Resource Development of the Government of India. The Board of Governors of the Institute are in over all charge of its affairs, and the Institute functions through the Standing Committees constituted by the Board from time to time. IIT Roorkee is fully funded by the Central Government and, since it is a body created by a Statute, it is an "instrumentality of the State" under Article 12 of the Constitution of India.

The petitioner, a post graduate in Commerce, an M. Phil. and a Ph.D. in Financial Management, applied for the post of Assistant Professor in the Department of Management Studies in the then University of Roorkee in January/February 2001. He was selected and appointed to the post of Assistant Professor in the Department of Management Studies of the University of Roorkee on 27.07.2001. Consequent on the University being converted into the IIT, the petitioner joined the post of Assistant Professor in Management Studies in the IIT on 05.10.2001.

After he had completed seven years of service, the petitioner applied for the post of Associate Professor and, after undergoing a process of selection which included an interview, he was promoted to the post of Associate Professor in the Department of Management Studies by proceedings dated 04.09.2001. Thereafter, on completion of ten years of service in IIT, Roorkee, he became eligible to be considered for promotion/appointment to the post of Professor and, after undergoing a process of selection including an interview, the petitioner was promoted/appointed to the post of Professor in the Department of Management Studies on 22.12.2018. The seventh respondent, on the other hand, was appointed as an Assistant Professor in IIT, Roorkee in December, 2009. He was promoted as an Associate Professor in April 2014, and is still working as an Associate Professor as on date.

By the impugned order dated 29.03.2019 the seventh respondent, though only an Associate Professor, was given charge of the post of the Head of the Department of Management Studies overlooking the petitioner who was not only a Professor, but was also several years senior to him. Aggrieved thereby, the present writ petition. Pleadings are complete with counter affidavits having been filed on behalf of the IIT as also by the seventh respondent, and a rejoinder affidavit having been filed in reply by the petitioner.

Sri C.D. Bahuguna, learned Senior Counsel appearing on behalf of the petitioner, would submit that exercise of power by the Director, IIT, in entrusting charge of the post of Head of the Department to the seventh respondent, is ultra vires the first Statute of the Institute; no reasons have been assigned in the order for doing so; as held by the Supreme Court, in State of Rajasthan vs. Rajendra Prasad Jain (2008) 15 SCC 711, an order bereft of reasons is illegal and necessitates being set-aside; having failed to assign reasons for entrusting charge, of the post of Head of the Department, to the seventh respondent in the impugned order, it is not now open to the Director, IIT to supplement the reasons by way of a counter affidavit; and, as held by the Supreme Court, in BhikhuBhai Vithlabhai Patel and Others vs. State of Gujarat and another (2008) 4 SCC 144 and United Air Travel Services vs. Union of India 2018 (5) Supreme 693, orders passed by an authority must stand or fall on its own legs, and cannot be supplemented later by way of an affidavit.

Sri C.D. Bahuguna, learned Senior Counsel appearing on behalf of the petitioner, would draw our attention to certain averments in the writ affidavit, to submit that, in the absence of any guidelines having been framed by the Board of Governors, the power conferred on the Director suffers from excessive delegation; and, consequently, Statute 22 (1) must be struck down as ultra vires Articles 14 and 16 of the Constitution of India. Learned Senior Counsel would rely on Air India vs. Nergesh Meerza and others (1981) 4 SCC 335 and District Registrar and Collector, Hyderabad & another vs. Canara Bank Etc (2005) 1 SCC 496, to contend that exercise of unbridled power must satisfy the test of reasonableness under Article 14 of the Constitution of India; and in the absence of reasons, which weighed with the Director in appointing the seventh respondent instead of petitioner, being disclosed, the impugned order necessitates being set-aside as arbitrary, illegal, and in violation of principles of natural justice; Para 22 (1), of the first Statute of the IIT, is also liable to be struck down on the ground of excessive delegation of discretionary power; while no monetary benefits may accrue on being posted as the Head of the Department, the said office confers a certain status on the individual entrusted with the charge of the post of Head of the Department; not only would the person appointed to the post, hold charge for a specified duration, he would also be entrusted with several administrative responsibilities; he would also be extended certain perquisites, such as a separate office and a telephone; holding the office, of the Head of the Department, is considered prestigious; though charge, of the post of the Head of the Department, is given by rotation, the petitioner was not considered even once; and he was overlooked by the Director, IIT, while appointing the seventh respondent as the Head of the Department.

On the other hand, Sri Rakesh Thapliyal, learned counsel appearing on behalf of the IIT, would place emphasis on the words "in-charge", in Para 22 (1) of the first Statute of the Institute, to submit that the Director has merely entrusted charge, of the post of Head of the Department, to the seventh respondent; the said post is not a promotional post, and no extra remuneration is paid to those who hold charge of the post; the first Statute itself stipulates that all Professors and Associate Professors are eligible to be considered for appointment to the said post of the Head of the Department which is filled up by rotation from amongst Professors and Associate Professors; in the absence of guidelines being prescribed by the Board of Governors, the Director of the Institute is entitled to exercise power, under Para 22 (1) of the first statute, to entrust charge of the post of the Head of the Department to any Professor/Associate Professor; it is not as if the Director of the Institute had picked and chosen the seventh respondent; the Director had inter-acted with all eligible Professors/Associate Professors before appointing the seventh respondent; as the decision, to appoint the seventh respondent, was taken only after elaborate discussions which the Director had with each individual Professor/Associate Professor, including the petitioner and the seventh respondent, his decision cannot be said to be arbitrary; since the post of the Head of the Department does not carry any additional monetary benefits, the petitioner cannot be said to have suffered any prejudice, merely because a person junior to him has been appointed as the Head of the Department; in any event, since charge of the post of the Head of the Department is given by rotation, among all eligible faculty members, Associate Professors are bound to be given charge of the post of the Head of the Department at one time or the other; there are several instances of junior faculty members, in the category of Associate Professors, being appointed as Heads of Departments in several other departments of the IIT; it is not as if an Associate Professor is being so appointed, for the first time, by way of the impugned order; the petitioner has suppressed the fact that the Director of the Institute had also interacted with him; his self professed claim of excellence, and as not having suffered any adverse remarks, is untenable; and the petitioner was imposed a warning earlier for plagiarism.

It is convenient to examine the rival submissions, urged on behalf of the petitioner by Mr. C.D. Bahuguna, learned Senior Counsel, and on behalf of the respondent-IIT by Mr. Rakesh Thapliyal, learned counsel, under different heads.

I. DOES CLAUSE 22(1) OF THE STATUTE OF THE IIT SUFFER FROM THE VICE OF EXCESSIVE DELEGATION OF POWERS ON THE GROUND THAT NO GUIDELINES HAVE BEEN PROVIDED FOR EXERCISE OF POWER BY THE DIRECTOR?

Let us, in the first instance, examine the challenge made to the constitutional validity of statute 22(1) of the First Statute of the IIT, on the ground that it promotes arbitrariness in the absence of guidelines; and a provision, which confers unguided and uncontrolled power, suffers from the vice of excessive delegation of powers and is unreasonable. Since the challenge to the validity of Statute 22(1) is not on the ground that the sub-delegation thereby to the Board of Governors is not authorized by the Act, we shall confine our enquiry only to the question whether conferment of power on the Director, under Clause 22(1) of the First Statute, is arbitrary as it is not circumscribed or guided by any principles of general application.

It is useful, in this context, to refer to the provisions of the Act, and the First Statute made in terms thereof. The Institute of Technology Act, 1961 (for short the "Act") is an Act to declare certain institutions of technology to be institutions of national importance, and to provide for certain matters connected with such institutions. Section (2) declares the Indian Institute of Technology, Roorkee as an Institution of national importance. Section 3 (a) of the Act defines the "Board", in relation to any Institute, to mean the Board of Governors. Section 11 of the Act requires the Board of an Institute to consist, among others, of (a) the Chairman, to be nominated by the Visitor; (b) the Director, ex-officio and others. Section 17(1) of the Act stipulates that the Director of each institute shall be appointed by the Council with the prior approval of the Visitor. Section 17(2) provides that the Director shall be the principal academic and executive officer of the Institute, and shall be responsible for the proper administration of the Institute, and for the imparting of instruction and maintenance of discipline. Section 17(4) requires the Director to exercise such other powers and perform such other duties as may be assigned to him by the Act or the Statutes or Ordinances. Section 25 (a) of the Act stipulate that all appointments on the staff of the Institute, except that of the Director, shall be made in accordance with the procedure laid down in the Statutes, by the Board, if appointment is made with respect to the academic staff in the post of Lecturer or above, or if the appointment is made on the non-academic staff in any cadre the maximum of the pay scale for which exceeds six hundred rupees per month; and in terms of Section 25 (b), in any other case, by the Director. Section 26 of the Act stipulates that the Statutes of the Institute may provide for all or any of the matters enumerated in Clauses (a) to (p) thereunder. Section 27 (1) of the Act requires the first Statutes, of each Institute, to be framed by the Council (the Council established under Section 31 (1) of the Act) with the previous approval of the Visitor (the President of India in terms of Section 9 (1) of the Act), and a copy of the same to be laid, as soon as may be, before each House of Parliament.

The first Statute of the Institute makes provision for several aspects. In the case on hand, we are concerned only with Clause 22 (1) in terms of which each department of the Institute shall be placed in charge of a Head who shall be selected by the Director, from amongst Professors and Associate Professors, in such manner as may be laid down by the Board from time to time. While the power to place a Professor/Associate Professor in charge of the post of the Head of the Department is to be exercised by the Director, by way of selection from amongst Professors and Associate Professors, the manner in which the charge, of the post of the Head of the Department, is to be placed on a Professor/Associate Professor is required to be laid down by the Board of Governors, of the IIT, from time to time. Admittedly, the Board of Governors of the Institute have, so far, not prescribed the manner in which charge of the post of the Head of the Department should be entrusted, and the impugned order dated 29.03.2019 was passed by the Director in the absence of any such guidelines being prescribed by the Board.

What are the circumstances under which a Statute made under the IIT Act (or a Rule or a Regulation) is liable to be struck down for excessive delegation of essential powers/functions? The legislature possesses wide powers of legislation, subject however to certain limitations such as that the legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy, and of formally enacting that policy into a binding rule of conduct. As the legislature cannot delegate uncanalised and uncontrolled power, it must set the limits of the power delegated by declaring the policy of the law, and by laying down standards for guidance of those on whom the power to execute the law is conferred. The delegation is valid only when the legislative policy, and the guidelines to implement it, are adequately laid down, and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature. The legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy, and leave it to the agency to work out the details within the framework of the policy. When the Constitution entrusts the duty of law making to Parliament and the legislatures of the States, it impliedly prohibits them to place that responsibility on the shoulders of some other authority. It is only because the legislature cannot work out in detail, the various requirements of giving effect to the enactment, that the area is left to be filled in by the delegatee. (Kishan Prakash Sharma and Ors. vs. Union of India (UOI) and Ors. AIR 2001 SC 1493; Krishna Mohan Pvt. Ltd. vs. Municipal Corporation of Delhi and Ors. AIR 2003 SC 2935).

When the legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasi-judicial capacity, by a legislation which does not lay down any policy, or disclose any tangible or intelligible purpose, it clothes the authority with unguided and arbitrary powers enabling it to discriminate. (Jyoti Pershad & others vs. Administrator for the Union Territory of Delhi & others AIR 1961 SC 1602). The legislature must declare the policy of the law and the legal principles which are to control any given cases, and must provide a standard to guide the officials or the body in power to execute the law. (Jyoti Pershad AIR 1961 SC 1602).

It is not always feasible to lay down exhaustive written guidelines which can cover all contingencies. It has, therefore, become necessary to make provision for the exercise of discretion in appropriate cases by giving broad guidelines, and indicating the parameters within which such power is to be exercised. Such exercise of discretion is valid if it is not wholly uncontrolled, uncanalised and without any objective basis. (Premium Granites & another vs. State of T.N. & others (1994) 2 SCC 691).

In ascertaining whether any particular legislation suffers from excessive delegation, the scheme, the provisions of the Statute including its preamble, and the facts and circumstances in the background in which the Statute is enacted, the history of the legislation, the complexity of the problems which a modern State has to face, should be taken note of. If, on a liberal construction of a Statute, the legislative policy and guidelines for its execution are brought out, the Statute, even if skeletal, will be held to be valid. This rule of liberal construction should, however, not be carried by the Court to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on the executive. (Kishan Prakash Sharma AIR 2001 SC 1493 and Krishna Mohan Pvt. Ltd. AIR 2003 SC 2935). Unbridled power available to be exercised by any person, without laying down any guidelines as to the persons who may be authorised and without recording the availability of grounds which would give rise to the belief, on the existence whereof only the power may be exercised, deprives the provision of the quality of reasonableness. (Canara Bank (2005) 1 SCC 496).

The law in question can be declared unconstitutional if it seeks to confer too broad a discretion on the administrator without laying down any principle or policy to regulate its exercise. For such an evaluation, the Courts take into account both the procedural and substantive aspects of the law. The substantive part is examined to see whether the discretion conferred is within permissible limits; the procedural part is examined to see whether there are necessary safeguards, subject to which the discretion is exercised. The Courts may, at times, imply some standards or safeguards in the law, or read it down or give it a restrictive interpretation in order to uphold its validity. [Treatise on Administrative Law by M.P. Jain, Edition 1996 (Vol. 1)].

The question whether a Statute is ultra vires the Constitution of India, having conferred unguided, uncanalised or wide power, cannot be determined in a vacuum. It should be considered having regard to the text and context of the Statute as also the character thereof. (People's Union for Civil Liberties & another vs.Union of India & others (2004) 2 SCC 476). It is not essential for the legislation to comply with the rule as to equal protection, that the rules for the guidance of the designated authority, which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision itself. If the legislation indicates the policy which inspired it, and the object which it seeks to attain, the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied, but leaves the selective application of the law to be made by the standard indicated or the underlying policy and object disclosed, is not a sufficient ground for condemning it as arbitrary and, therefore, obnoxious to Article 14. (Jyoti Pershad AIR 1961 SC 1602). So long as the policy is laid down and a standard established by a statute, no unconstitutional delegation of legislative power is involved in leaving, to selected instrumentalities, the making of subordinate rules within prescribed limits and the determination of facts to which the policy, as declared by the Legislature, is to apply. (Jyoti Pershad AIR 1961 SC 1602 and Harishankar Bagla and another vs. The State of Madhya Pradesh 1954 CriLJ 1322).

Guidance may be obtained from or afforded by (a) the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with well-known facts of which the Court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits; or (b) even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or comparable situations or generally from the object sought to be achieved by the enactment. So long as the legislature indicates its purpose, and lays down the policy, it is not necessary that every detail of the application of the law to particular cases should be laid down in the enactment itself. (Jyoti Pershad AIR 1961 SC 1602).

The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. There are many things upon which wise and useful legislation must depend which cannot be known to the law making power, and must therefore be the subject of enquiry and determination outside the hall of the legislature. (Lockes Appeal 72 Pa. 491; Field v. Clark 143 U. S. 649 and Hamdard Dawakhana and Ors. vs. Union of India (UOI) and Ors. AIR 1960 SC 554). But the discretion should not be so wide that it is impossible to discern its limits. There must, instead, be definite boundaries within which the powers of the administrative authority are exercisable. Delegation should not be so indefinite as to amount to an abdication of the legislative function (Schwartz American Administrative Law, page 21; Hamdard Dawakhana AIR 1960 SC 554).

When the delegate is given the power of making rules and regulations, in order to fill in the details to carry out and subserve the purposes of the legislation, the manner in which the requirements of the Act are to be met, and the rights therein created to be enjoyed, is an exercise of delegated legislation. (Hamdard Dawakhana AIR 1960 SC 554). Delegated legislation involves delegation of the rule making power which may be exercised by the administrative agent. This means that the legislature, having laid down the broad principles of its policy in the legislation, can then leave the details to be supplied by the administrative authority. In other words, by delegated legislation, the delegate completes the legislation by supplying details within the limits prescribed by the Act. (The Queen v. Burah (1878) 3 App. Cas. 889; Russell v. The Queen (1882) 7 App. Cas 829; King Emperor v. Benoarilal Sarma I.L.R. . ((1944) L.A. 57; Sardar Indar Singh v. State of Rajasthan (1957) S.C.R. 604 and Hamdard Dawakhana AIR 1960 SC 554).

The question for decision is whether the delegation is constitutional in that the administrative authority has been supplied with proper guidance. (Hamdard Dawakhana AIR 1960 SC 554). If the legislature has established no criteria and no standards, has not prescribed any principle, and has not stated what facts or circumstances are to be taken into consideration, the delegated power must be held to travel beyond the permissible boundaries of a valid delegation. (Hamdard Dawakhana AIR 1960 SC 554). If the rule does not lay down any principle, and its application depends on the arbitrary will of the authority on whom power is conferred to decide what he would and what he would not, and he is the only person who can examine it, the Rule is invalid on account of excessive delegation of powers by the Legislature. (New Manek Chowk Spinning and Weaving Mills Co. Ltd. and Ors. vs. Municipal Corporation of The City of Ahmedabad and Ors. AIR 1967 SC 1801).

Courts control delegation of legislative power on the administrator through the doctrine of 'excessive delegation of legislative power'. The doctrine of 'excessive delegation of discretion' envisages that conferral of too broad and uncanalised discretion on the administration is invalid. Discretionary power ought to be hedged by policy, standards, guidelines and/or procedural safeguards, otherwise the Courts may declare the statutory provision, conferring sweeping discretion, as void. (Treatise on Administrative Law by M.P. Jain , Edition 1996 (Vol. 1) Courts have shown greater deference to laws conferring powers of delegated legislation than to laws conferring discretion. (Treatise on Administrative Law by M.P. Jain , Edition 1996 (Vol. 1). 24. The law always frowns on uncanalised and unfettered discretion on any instrumentality of the State and such discretion has been, through judicial decisions, structured and regulated. (Sheo Nandan Paswan Vs. Bihar AIR 1987 SC 877). Tolerance has been shown by Courts towards conferral of large discretionary powers if they can find some substantive and/or procedural safeguards to regulate the exercise of power. The Court may, at times, imply a standard to save an enactment from an unconstitutionally broad delegation. (Treatise on Administrative Law by M.P. Jain , Edition 1996 (Vol. 1)). It is only in an extreme case of too broad a discretion having been conferred, without any policy or procedural safeguards, that the Court may be persuaded to declare the relevant law invalid on the ground of excessive delegation of discretion. (Sheo Nandan Paswan AIR 1987 SC 877).

As the delegated legislation (i.e. the First Statute of the IIT) indicates a definite objective, and has vested in the Board of Governors the power to frame guidelines as means of achieving that object, Clause 22(1) of the First Statute cannot, itself, be held to be arbitrary, though the action of the Director may be condemned if it offends against the equal protection clause by making an arbitrary selection. (Jyoti Pershad AIR 1961 SC 1602). No statutory provision can be struck down on the ground that, although it is valid, it is likely to be used for an unauthorised purpose. (Sukumar Mukherjee vs. State of W.B. & another (1993) 3 SCC 723). It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category. (Common Cause, A Registered Society vs. Union of India & others (1996) 6 SCC 530), and this obligation, Clause 22(1) of the First Statute of the IIT, has placed on the Board of Governors of the IIT.

As noted hereinabove, Section 25(a) of the Act stipulates that all appointments of the staff of the IIT shall be made in accordance with the procedure laid down in the Statutes. While appointment is to be made in terms of Section 25(b) of the Act by the Director, the procedure by which such appointment should be made is required to be laid down in the Statutes. Clause 22.1 of the First Statute provides that each department of the Institute shall be placed in the charge of a Head, who shall be selected by the Director, from amongst Professors and Associate Professors, in such a manner as may be laid down by the Board of Governors from time to time.

While the power to entrust a Professor / Associate Professor, with the charge of the Head of the Department, is conferred on the Director, such power is circumscribed by twin conditions. Firstly that placement, in charge of a Head of the Department, should be made by way of selection amongst Professors / Associate Professors; and, secondly, the manner in which such selection should be made must be laid down by the Board of Governors from time to time.

Clause 22.1 of the First Statute does not confer unbridled or uncanalised power on the Director, but fetters its exercise to the manner laid down by the Board of Governors from time to time. While the Director is required to select one of the Professors / Associate Professors, to be placed in charge of the Head of the Department, the Board of Governors are required to prescribe the manner in which the Professor / Associate Professor should be selected for entrustment of the charge of the Head of the Department.

In the present case, we are concerned not with the validity of the plenary legislation (i.e. the IIT Act) on the ground of excessive delegation of essential legislative functions. The challenge, on the other hand, is to the validity of subordinate legislation (Clause 22.1 of the First Statute of the IIT) on the ground that it confers unbridled and unfettered power on the Director to pick and choose a person of his choice to be entrusted with the charge of the Head of the Department.

Clause 22.1 of the First Statute prescribes boundaries within which alone can the Director exercise the discretionary powers conferred on him to entrust charge of the Head of the department to a Professor / Associate Professor, the boundaries being the guidelines to be prescribed by the Board of Governors of the IIT from time to time. While failure, on the part of the Board of Governors to prescribe guidelines, may have resulted in uncanalised power being exercised by the Director, in entrusting charge of the Head of the Department to a Professor/Associate Professor of the Department, it would not render Clause 22.1 of the First Statute of the IIT arbitrary or necessitate its being struck down on the ground that it suffers from the vice of excessive delegation of powers.

Regulation 46 of the Air India Employees Service Regulations stipulated that an Air Hostess shall retire from the service of the Corporation on her attaining the age of 30 years, or when she gets married, whichever is earlier; and the General Manager may, however, retain in service a married Air Hostess upto the age of 40 years. In Nergesh Meerza (1981) 4 SCC 335, on which heavy reliance is placed by Mr. C.D. Bahuguna, learned Senior Counsel appearing on behalf of the petitioner, the Supreme Court held that Regulation 46 contained an unguided and uncontrolled power, and therefore suffered from the vice of excessive delegation of powers; and, on a parity of reasoning, the power conferred on the General Manager to retain an Air Hostess upto the age of 40 years should be struck down as invalid as it did not lay down any guidelines or principles.

Unlike in Nergesh Meerza (1981) 4 SCC 335, where the Service Regulations conferred unbridled power on the General Manager to retain a married air-hostess in service beyond thirty years and upto 40 years of age, in the present case, conferment of power on the Director, to entrust charge of the post of the Head of the Department to a Professor / Associate Professor of the Department, is circumscribed by the requirement of the person being selected by the Director in terms of the guidelines issued by the Board of Governors from time to time.

As procedural safeguards have been provided, requiring the Board of Governors to prescribe guidelines for the manner in which the charge of the Head of the Department should be entrusted, we are satisfied that Clause 22.1 of the First Statute of the IIT does not suffer from the vice of excessive delegation of discretionary power. The challenge to the validity of Clause 22.1, of the First Statute of the IIT, must therefore fail.

II.WOULD FAILURE TO ASSIGN REASONS VITIATE AN ADMINISTRATIVE ORDER PASSED OTHER THAN IN THE EXERCISE OF QUASI-JUDICIAL FUNCTIONS?

The impugned order dated 29.03.2019, passed by the second respondent, does not assign reasons for entrusting charge of the post of Head of the Department to the seventh respondent, overlooking the petitioner who was far senior to him. The giving of reasons is one of the fundamentals of good administration. (Rajendra Prasad Jain1; Breen v. Amalgamated Engg. Union (1971) 2 QB 175 at 190). Reasons are the link between the mind of the decision-taker to the controversy in question, and the decision or conclusion arrived at. (Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 ICR 120; Rajendra Prasad Jain (2008) 15 SCC 711). The administration is under a general duty to act fairly, and fairness founded on reason is the essence of the right of equality. (Govt.Branch Press vs. D.B. Belliapa AIR 1979 SC 429). An unreasoned decision may be just, but may not appear to be so to the person affected. A reasoned decision, on the other hand, has the appearance of fairness and justice. (M.P. Industries Vs. Union of India AIR 1966 SC 671; West Bengal vs. Krishan Shaw AIR 1990 SC 2205 and Woolcombers of India vs. Their Workmen AIR 1973 SC 275). Giving of reasons for the decision ensures application of mind, to the facts and circumstances of the case, by the decision maker. It ensures that he does not reach his decision mechanically or arbitrarily or on irrelevant considerations, and it is taken in accordance with law. (Treatise on Administrative Law by M.P. Jain. Jain, Edition 1996 (Vol. 1).

The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for Courts to perform their appellate functions or exercise their power of judicial review in adjudging the validity of the decision. The right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before the Court. One of the salutary requirements is for spelling out reasons for the order made; in other words, a speaking-out. The 'inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance. (Rajendra Prasad Jain (2008) 15 SCC 711).

An administrative authority, exercising quasi-judicial functions, must record reasons for its decision as it is subject to the appellate jurisdiction of the Supreme Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution, and would enable them to effectively exercise their appellate or supervisory power. Other considerations are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decision; and (iii) minimise chances of arbitrariness in decision-making. (S.N. Mukherjee vs. Union of India (1990) 4 SCC 594). Reasons, when recorded by an administrative authority, in an order passed in the exercise of its quasi-judicial functions, would exclude the possibility of arbitrariness, and ensure a degree of fairness in the process of decision-making. This requirement would apply equally to all decisions taken in the exercise of the quasi-judicial functions, and its application cannot be confined to decisions which are subject to appeal or revision alone. Except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority, exercising judicial or quasi-judicial functions, is required to record reasons for its decision. (S.N. Mukherjee (1990) 4 SCC 594).

There is, however, no general common-law duty to furnish reasons for a decision taken by an administrative authority other than those in the exercise of his quasi-judicial power. (Public Service Board of NSW Vs. Osmond (1986) 53 ALR 559). Some exceptions have been engrafted to this general rule, and Courts have imposed an obligation on some specific bodies to give reasons for their decisions in certain circumstances. They are : (1) When an individual has a right of appeal from the decision of a body, and such a right may be frustrated in the absence of reasons being given by the concerned body; and (2) there may exist a legitimate expectation that the deciding authority would give reasons for its decisions. This may create an obligation on the concerned body to give reasons. (R. v. Civil Service Appeal Board, ex p. Cunningham (1991) 4 All E.R. 3101; R. v. Parole Board, ex p. Wilson (1992) Q.B. 740 and R. v. Secretary of State for the Home Dept. ex p. Doody (1993) 3 All ER 92).

It has never been a principle of natural justice that reasons should be given for purely administrative decisions. (Regina v. Gaming Board for Great Britain ex p. Benaim and Khaida [1970] 2 QB 417; Union of India & others vs. E.G. Nambudiri (1991) 3 SCC 38). Where a vested right is adversely affected by an administrative order, or where civil consequences ensue, principles of natural justice apply even if the statutory provisions do not make any express provision for its application, and the person concerned must be afforded an opportunity of hearing before the order is passed. But principles of natural justice do not require the administrative authority to record reasons for all its decisions, as there is no general rule that reasons must be given. The order of an administrative authority, which has no statutory or implied duty to state reasons or the grounds of its decision, is not rendered illegal merely on account of absence of reasons. (E.G. Nambudiri (1991) 3 SCC 38).

There are many areas of administrative activity where no reasons are recorded or communicated, and, if such a decision is challenged before the Court for judicial review, the reasons for the decision may be placed before the Court. (E.G. Nambudiri (1991) 3 SCC 38). Where an individual makes the charge of unfair discrimination with specificity, it is "the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. The Court will then scrutinize the circumstances of the case with regard to the object sought to be achieved by the enactment, and come to its own conclusion with respect to the bonafides of the order. The administrative authority concerned has a good defence if it can prove bonafides. (Pannalal Binraj Vs. Union of India AIR 1957 SC 397, 409; Government Branch Press Vs. D.B. Belliappa AIR 1979 SC 429). The First Statute of the IIT does not, either expressly or by necessary implication, require the Director to assign reasons for passing orders such as the one impugned in the Writ Petition. Failure to assign reasons in the impugned order dated 29.03.2019, an administrative order passed not in the exercise of quasi-judicial authority, is, by itself and without anything more, not fatal.

In support of his contention that the order passed by the Director, IIT dated 29.03.2019, appointing the seventh respondent as the Head of the Department, cannot be supplemented by reasons given in the counter-affidavit, and the said order dated 29.03.2019 must stand or fall on its own legs, Mr. C.D. Bahuguna, learned Senior Counsel, has relied on certain judgments. Though the impugned order does not disclose reasons, the second respondent has, in his counter-affidavit, explained why he chose to overlook the petitioner, and appoint the seventh respondent instead, as the Head of the Department of Management Studies. It is necessary for us, therefore, to take note of the judgments, on which reliance is placed in by the learned Senior Counsel, to submit that an order bereft of reasons cannot be sustained on reasons stated later in the counter-affidavit.

In Commissioner of Police, Bombay vs. Gordhandas Bhanji AIR 1952 SC 16, the jurisdiction to grant or refuse a license, for establishing a cinema theatre, was conferred on the Commissioner of Police, Bombay. While the respondent's application was initially refused by the Commissioner, he later accorded permission at the instance of the Cinema Advisory Committee whose functions were purely advisory in nature. On receipt of representations from the public, the Commissioner conveyed to the respondent that he was directed by the Government to inform him that the permission, granted earlier to erect a cinema in the site, was cancelled. On an affidavit filed by the Commissioner contending that the said order was an order of cancellation made by him, and it was his order and not that of the Government, the Supreme Court, while observing that the said order was not an order of cancellation passed by the Commissioner but was merely an intimation by him of an order being passed and made by the Government of Bombay, held that public orders publicly made, in the exercise of statutory authority, must be construed objectively with reference to the language used in the order itself, and cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do.

In Mohinder Singh Gill & others vs. The Chief Election Commissioner & others (1978) 1 SCC 405, the appellant contested for elections to the Firozepore Parliamentary Constituency in the State of Punjab. The Returning Officer, who had postponed conclusion of the elections, reported the matter to the Election Commission of India which, in the exercise of its powers under Article 324 of the Constitution and Section 153 of the Representation of the People Act, 1951, issued a notification cancelling the poll which took place in Ferozepure Parliamentary constituency, and extended the time for completion of the elections. Pursuant thereto, a re-poll was held. The notification issued by the Election Commission was subjected to challenge, and on a stand, different from that spelt out in the said notification, being taken by the Election Commission, the Supreme Court observed that, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned, and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.

In United Air Travel Services vs. Union of India (2018) 8 SCC 141, certain criteria was prescribed, in terms of the prevalent policy, for registration of private tour operators carrying on travel business for Haj and Umrah. Some of these operators were disqualified from being granted registration for the year 2016 Haj pilgrimage. On their invoking the jurisdiction of the Court, it was contended, by the respondents before the Supreme Court, that the reasons for disqualification were wrongly communicated in the rejection order, and there was some other reason for such rejection. The Supreme Court, relying on Mohinder Singh Gill (1978) 1 SCC 405, held that the stand of the respondent was unsustainable.

In Bhikhubhai Vithlabhai Patel & others vs. State of Gujarat & another (2008) 4 SCC 144, the appellant had challenged re-reservation of lands for the South Gujarat University under the provisions of the Gujarat Town Planning and Urban Development Act, 1976. A preliminary notification was issued by the State Government under Section 17(1) of the said Act. In the affidavit, filed on behalf of the State Government, it was stated that what weighed with the State Government, while exercising its powers under Section 17(1)(a)(ii) of the Act, was public interest at large; and it had thought it fit to classify the subject lands for educational use, so that there was a specific pocket of educational institutional area in the fast developing city of Surat. While holding that the public interest parameter was, undoubtedly, a valid consideration that could have been taken into account by the State Government, the Supreme Court opined that this aspect of the matter was stated for the first time in the affidavit in-reply, and was not borne out by the record; there was nothing on record suggesting as to what public interest parameter weighed with the State Government; and there was no material available on record in support of what had been pleaded in the reply affidavit. While holding that the impugned preliminary notification itself did not reflect formation of any opinion by the State Government as to why it had become necessary to make substantial modifications in the draft development plan, the Supreme Court, placing reliance on its earlier judgments in Gordhandas Bhanji AIR 1952 SC 16 and Mohinder Singh Gill (1978) 1 SCC 405, observed that neither the preliminary notification nor the records disclosed the formation of opinion by the State Government, much less any consideration that a necessity had arisen to make substantial modifications in the draft development plan.

We have no quarrel with the submission of Mr. C.D. Bahuguna, learned Senior Counsel, that public orders, publicly made in the exercise of statutory authority, cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders, made by public authorities, are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed, and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older. (Gordhandas Bhanji AIR 1952 SC 16; Mohinder Singh Gill (1978) 1 SCC 405; Bhikhubhai Vithlabhai Patel (2008) 4 SCC 144 and United Air Travel Services (2018) 8 SCC 141). When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order, bad in the beginning, may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. [United Air Travel Services (2018) 8 SCC 141; Mohinder Singh Gill (1978) 1 SCC 405).

Unlike public orders, publicly made in the exercise of statutory authority, purely administrative decisions, which do not have a judicial or a quasi-judicial flavor, are not subject to any such limitations. While there may not be any obligation on the authorities to assign reasons in such cases, the distinction, between failure to pass a reasoned order and a decision uninformed by reason, must be borne in mind. Reasonableness does not require reasons to be stated. The only significance of withholding reasons is that, if the facts point overwhelmingly to one conclusion, the decision-maker cannot complain if he is held to have had no rational reason for deciding differently, and that, in the absence of reasons, he is in danger of being held to have acted arbitrarily. (Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition; and R.v. Secretary of State for Trade and Industry ex p. Lonrho Plc (1989) 1 WLR 525).

Exercise of statutory authority, to determine the rights and liabilities of parties, cannot be equated with the discharge of other administrative obligations. While reasons are required to be assigned where civil consequences may ensue, it may not be necessary to do so in other matters, save and except in limited circumstances. (Ramchandra Murarilal Bhattad v. State of Maharashtra (2007) 2 SCC 588; Star Enterprises v. C.I.D.C. of Maharashtra Ltd.(1990) 3 SCC 280). If an order, bereft of reasons, is challenged in judicial review proceedings, the reasons for the decision may be placed before the Court. There is no legal obligation to record or communicate reasons for the decision, where the decision neither adversely affects vested rights nor does it have any civil consequences. (E.G. Nambudiri (1991) 3 SCC 38).

As absence of reasons and apparent non-application of mind would give the colour of arbitrariness to the State action, it would suffice if the action taken by the State is supported by valid reasons and reflects due application of mind which can be explained by way of affidavits filed before the Court. (Sindhi Education Society v. Govt. (NCT of Delhi) (2010) 8 SCC 49). When a challenge is mounted, to a purely administrative order, it is always open to the administrator to furnish reasons in the affidavit filed by them, and satisfy the Court that their action is just and valid and is not so arbitrary, illegal, irrational or unreasonable as to violate Article 14 of the Constitution of India.

While the concerned authority may not be bound to give his reasons for refusing to exercise his discretion in a particular manner, he cannot escape from the possibility of control by mandamus without explanation. If he does not give any reason for his decision, the Court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and issue a prerogative writ accordingly. (Padfield Vs. Minister of Agriculture [1968] UKHL 1). While the discretion exercised by the Director, IIT to appoint the seventh respondent as the Head of the Department, overlooking the petitioner, must undoubtedly be reasonable, and the question regarding the reasonableness of such a decision may be examined in the light of the averments in the counter-affidavit, we may not be justified in quashing the impugned order dated 29.03.2019, merely because the order does not itself contain reasons for arriving at such a decision.

III. DOES EXERCISE OF DISCRETION BY THE SECOND RESPONDENT, TO ENTRUST CHARGE OF THE POST OF HEAD OF THE DEPARTMENT TO THE SEVENTH RESPONDENT, NECESSITATE INTEREFERENCE?

The discretion conferred on the Director, IIT Roorkee, by Clause 22.1 of the First Statute, is no doubt required to be exercised in terms of the guidelines to be framed by the Board of Governors of the IIT. It would, however, be difficult for us to hold that, in the absence of guidelines being framed by the Board of Governors, the Director, IIT is, invariably, disabled from exercising his powers to give charge of the post of the Head of Department to a Professor/Associate Professor of the concerned Department. While the Director may, even in such circumstances, have the discretion to make such appointment, the question which necessitates examination is whether or not exercise of discretion by the Director, IIT, to give charge of the post of the Head of the Department of Management Studies to the 7th respondent overlooking the petitioner, accords with law?

In this context it must be borne in mind that every activity of a public authority must be informed by reason and guided by public interest. All exercise of discretion or power by public authorities must be judged by that standard. (M/s Dwarkadas Marfatia & Sons vs. Board of Trustees of the Port of Bombay (1989) 3 SCC 293). It is only where powers are given for the personal benefit of the person empowered, that the discretion is absolute. Plainly this can have no application in public law. The whole concept of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition)]. The powers of public authorities are therefore essentially different from those of private persons, and the former may do none of the things which the latter may. A public authority must act reasonably and in good faith and upon lawful and relevant grounds of public interest. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition); Re Brocklehurst (1978) Ch. 14; Chapman v. Honig (1963) 2 QB 502).

What the rule of law demands is not that wide discretionary power should be eliminated, but that the law should control its exercise. The first requirement is the recognition that all power has legal limits. The next requirement, no less vital, is that the Courts should draw those limits in a way which strikes the most suitable balance between executive efficiency and legal protection of the citizen. The Legislature often confers, upon public authorities, powers which, on their face, may seem absolute and arbitrary. But arbitrary power and unfettered discretion are what the Courts refuse to countenance. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition)]. There is room for exercise of discretion within the operation of the rule of law, even though it should be restricted to the extent necessary for proper governance. Existence of proper guidelines, or norms of general principles, excludes arbitrary exercise of discretionary authority, and its exercise in accordance with proper guidelines or norms, further reduces the possibility of the decision suffering from the vice of arbitrariness. To that limited extent, atleast, discretionary power should be available to make the system work. (Supreme Court Advocates-on-Record Association and another vs. Union of India AIR 1994 SC 268).

'Discretion' should be exercised according to the rules of reason and justice, not according to private opinion: according to law and not humour. It should not be arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man, competent to the discharge of his office, ought to confine himself. [Administrative Law (H.W.R. Wade & C.F.Forsyth - Tenth Edition); Shaarp v. Wakefield (1891) AC 173; R.v. Wilkes (1770) 4 Burr. 2527 at 2539]. Whenever a Statute or a statutory rule confers power on a statutory authority including a delegate under a valid Statute, how so ever wide it may be, such discretion should be exercised reasonably within the sphere that the Statute or Statutory Rule confers. (Consumer Action Group & another vs. State of T.N. & others (2000) 7 SCC 425). Statutory power, to be exercised for a public purpose, is conferred as it were upon trust, not absolutely-that is to say, it can validly be used only in the right and proper way in which the Legislature, when conferring it, is presumed to have intended. In a system based on the rule of law, unfettered discretion is a contradiction in terms. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition); Commissioners of Customs and Excise v. Cure and Deeley Ltd. (1962) 1 QB 340, especially at 366-7).

Discretionary power conferred upon public authorities is not absolute, even within its apparent boundaries, but is subject to general legal limitations. These limitations are expressed in a variety of different ways, as by saying that discretion must be exercised reasonably and in good faith, that relevant considerations alone must be taken into account, or that the decision must not be arbitrary or capricious. They can all be comprised by saying that the discretion must be exercised in the manner intended by the empowering Act. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition) and R.v. Commission for Racial Equality ex p. Hillingdon LBC (1982) QB 276]. When a wide power is vested in the authority, it should be exercised with circumspection. Greater the power, greater should be the caution. A discretionary power, which is capable of being exercised arbitrarily, is not permitted by Article 14 of the Constitution of India. (Consumer Action Group (2000) 7 SCC 425). The Legislature can never be taken to have intended to give any statutory body a power to act in bad faith or to abuse its powers. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition)].

The discretion of a statutory body is not unfettered, and should be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations, and not by irrelevant ones. If its decision is influenced by extraneous considerations, which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith, nevertheless the decision will be set aside. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition) and Padfiled [1968] UKHL 1].

There is, in principle, no such thing as unreviewable administrative discretion, which would be just as much a contradiction in terms as unfettered discretion. It remains axiomatic that all discretion is capable of abuse, and that legal limits to every power are to be found somewhere. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition); R.v. Tower Hamlets LBC ex p. Chetnik Developments Ltd. (1988) AC 858 at 872; Amalgamated Engineering Union (1971) 2 QB 175 at 190; Secretary of State for Employment v. ASLEF (No. 2) (1972) 2 QB 455 at 493; Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (1977) AC 1014]. No law in India can clothe administrative discretion with complete finality, for the Courts can always examine the ambit, and even its exercise, from the point of view of its conformity with fundamental rights. (Treatise on Administrative Law by M.P. Jain Edition 1996 (Vol. 1)).

Further the Court's control cannot be evaded by omitting to specify the grounds of the decision [Administrative Law (H.W.R.Wade & C.F. Forsyth - Tenth Edition)]. The grounds on which administrative action is subject to control by judicial review are, firstly, 'illegality, the second 'irrationality', and the third 'procedural impropriety'. If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If administrative power is exercised on the basis of facts which do not exist, and which are patently erroneous, such exercise of power will stand vitiated. (Commissioner of Income-tax v. Mahindra and Mahindra Ltd. (1983) 44 ITR 225 (SC); SCT of NCT of Delhi & another vs. Sanjeev @Bittoo (2005) 5 SCC 181 and Council of Civil Service Unions Vs. Minister for the Civil Service 1984 (3) All.ER.935). Courts are slow to interfere with decisions, save in cases where they are tainted by any of the aforesaid infirmities. Whether the action falls within any of these categories must be established. Mere assertion in that regard would not suffice. (Sanjeev @Bittoo (2005) 5 SCC 181).

Discretion must also be exercised reasonably. The word 'unreasonable' has frequently been used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority, [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition); Short v. Poole Corporation (1926) Ch. 66], such as taking into consideration extraneous matters. It must be so unreasonable that it might almost be described as being done in bad faith, (Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation All ER p. 682 and Sanjeev @Bittoo (2005) 5 SCC 181), and must be such that the Court considers it to be a decision that no reasonable body can come to. (Wednesbury Corporation All ER p. 682 and Sanjeev @Bittoo (2005) 5 SCC 181). The Wednesbury test of unreasonableness applies to a decision which is so outrageous in its defiance of logic, or of accepted moral standards, that no sensible person, who had applied his mind to the question to be decided, could have arrived at it. (Council of Civil Service Unions 1984 (3) All.ER.935; Sanjeev @Bittoo (2005) 5 SCC 181; Union of India and Anr. Vs. G. Ganayutham (1997) 7 SCC 463).

Two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable. [Re W. (an infant (1971) AC 682 at 700; Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition)]. The rule of reason is the standard indicated by a true construction of the Act/Rule which distinguishes between what the statutory authority may or may not be authorized to do. It distinguishes between the proper use and improper abuse of power. It is often expressed by saying that the decision is unlawful if it is one to which no reasonable authority could have come to. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition); Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223]. The rule of reason has become a generalized rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purposes, a wide category of errors commonly described as 'irrelevant considerations', and mistakes and misunderstandings which can be classed as self-misdirection, or addressing oneself to the wrong question. While the abuse of discretion has a variety of differing legal facets, in practice the Courts often treat them as distinct. The one principle that unites them is that powers must be confined within the true scope and policy of the Act. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition); Lambeth LBC v. Secretary of State for Social Services (1980) 79 LGR 61; Niarchos v. Secretary of State for the Environment (1977) 76 LGR 480 and Anisminic Ltd. V. Foreign Compensation Commission (1969) 2 AC 147]. The standard of unreasonableness is nominally pitched very high: 'so absurd that no sensible person could ever dream that it lay within the powers of the authority, and 'so wrong that no reasonable person could sensibly take that view. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition); Council of Civil Service Unions 1984 (3) All.ER.935].

To arrive at a decision on "reasonableness", the Court should ascertain whether the administrator has left out relevant factors or taken into account irrelevant ones. The decision of the administrator must fall within the four corners of the law, and not one which no sensible person could have reasonably arrived at having regard to the above principles, and must be bona fide. The decision can be based on one of the many choices open to the authority, and it is for that authority to decide upon the choice, and not for the Court to substitute its views. [Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation All ER p. 682 and Sanjeev @Bittoo (2005) 5 SCC 181].

Where the legislature, or the delegated legislative authority, has conferred power to a particular body, with a discretion as to how it is to be used, it is beyond the power of any court to contest that discretion. [Westminster Cpn. v. London & North Western Railway Co. (1905) AC 426; Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition)]. The discretion ought to be that of the designated authority, and not that of the Court. On the other hand, the Legislature cannot be supposed to have intended that the power should be open to serious abuse. It must have assumed that the designated authority would act properly and responsibly, with a view to doing what was best in the public interest, and most consistent with the policy of the statute. It is from this presumption that the Courts take their warrant to impose legal bounds on even the most extensive discretion. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition)]. Decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the confines of reasonableness, it is no part of the Court's function to look further into its merits. 'With the question whether a particular decision is wise or foolish the Court is not concerned; it can only interfere if to pursue it is beyond the powers of the authority.' [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition); Short v. Poole (1926) Ch. 66].

Courts, ordinarily, confine their examination to whether there is any infirmity in the decision making process, and not in the decision itself. [Indian Railway Construction Co. Ltd. v. Ajay Kumar (2003) 4 SCC 579; Sanjeev @Bittoo (2005) 5 SCC 181]. The law recognises certain principles upon which discretion must be exercised, but within the four corners of those principles the discretion is absolute, and cannot be questioned in a Court of law. (Associated Provincial Picture Houses Limited (1948) 1 KB 223; Padfield [1968] UKHL 1). While it is not possible to draw a hard and fast line, but if the authority, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then persons aggrieved would be entitled to the protection of the Court. (Padfield [1968] UKHL 1).

If the authority has a complete discretion under the Act or the Rule, the only question remaining is whether he has exercised it lawfully. (Padfield [1968] UKHL 1). A mandamus can only be issued against the authority if it is shown that, in some way, it acted unlawfully. A Court can make an order if it were shown that the authority (a) failed or refused to apply his mind to consider relevant questions, or (b) misinterpreted the law or proceeded on an erroneous view of the law, or (c) based his decision on some wholly extraneous consideration or (d) failed to have regard to matters which he should have taken into account. (Padfield [1968] UKHL 1).

Applying these tests, let us now examine whether or not exercise of discretion by the second respondent, to pass the impugned order dated 29.03.2019, necessitates interference? As the said order does not assign reasons why the seventh respondent was chosen, and why the petitioner was overlooked, though the latter was far senior to the former and had never been appointed earlier as the Head of Department, the validity or otherwise of the exercise of such discretion needs to be examined on the basis of the justification furnished, for such an exercise, in the counter affidavit filed before this Court. Even if the contention, that the appointment is made by rotation, is accepted, a senior faculty member in the cadre of Professor would, ordinarily, be appointed by rotation first before charge of the post is entrusted to a junior faculty member in the Associate Professor cadre. While we may not be understood to have held that in no case can a senior faculty member be overlooked, the second respondent was obligated to disclose the reasons, which weighed with him in giving charge of the post of the Head of Department to the seventh respondent, if not in the order passed by him, but at least in the counter affidavit filed in the writ petition.

Mr. Rakesh Thapliyal, learned counsel for the second respondent, would submit that the Director had interacted with all eligible Professors/Associate Professors, including the petitioner, before entrusting charge of the post of the Head of Department to the seventh respondent. What the Director was required, but has failed, to disclose are the reasons why, after interacting with all the faculty members, he chose the seventh respondent, and not the petitioner.

The other justification put forth, for not conferring charge of the post of the Head of Department on the petitioner, is that he was earlier imposed a warning for plagiarism. In this context it is useful to note that the minutes of the 42nd Meeting of the Board of Governors dated 05.03.2014, at items 42.1.11, relates, among others, to the consideration of the report of the Enquiry Committee regarding plagiarism in research publications by certain faculty members. It records the resolution of the Board (Resolution No. BG/05/2014) to issue warning in writing to Dr. Z. Rahman, Associate Professor, Dr. A.K. Sharma, Associate Professor (petitioner) and Dr. S. Rangnekar, Associate Professor, all from the Department of Management Studies. While the proviso thereto stipulated that appropriate disciplinary action would be initiated against them if such an act of plagiarism was repeated by them in future, the resolution also directed an entry of warning to be made in their respective Service Books.

Despite such a warning, Dr. S. Rangnekar was appointed as the Head of the Department for two terms, of one year each, by proceedings dated 12.12.2014 and 23.12.2015. Likewise, by proceedings dated 01.03.2016, Dr. Z. Rahman was appointed as the Head of the Department of Management Studies of the IIT. Though three professors including the petitioner, (at the relevant time all three of them were Associate Professors), were issued a warning, the said entry did not come in the way of the other two (Dr. Z. Rahman and Dr. S. Rangnekar) being given charge of the post of the Head of the Department, and the petitioner has alone being singled out for adverse treatment.

The contention that, since a warning was issued to the petitioner, he was denied being given charge of the post of the Head of Department is, evidently, an irrelevant consideration since two other Professors, i.e. Dr. Z. Rahman and Dr. S. Rangnekar, who were also imposed a warning along with him, were nonetheless given charge of the post of the Head of Department of Management Studies.

Article 14 does not permit exercise of discretion to pick and choose arbitrarily out of several persons falling in the same category. The choice, among the members belonging to the same class or category, must be based on reason, fair play and non arbitrariness. (Common Cause, A Registered Society (1996) 6 SCC 530). We are satisfied, therefore, that exercise of power by the Director, to entrust charge of the post of the Head of Department to the seventh respondent-an Associate Professor, overlooking the petitioner-a Professor and far senior to the former, does not satisfy the test of reasonableness. Since it suffers from the vice of irrationality and unreasonableness, the impugned order dated 29.03.2019 must be, and is accordingly, set-aside.

The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the Court must not usurp the discretion of the public authority which the Legislature has appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. It is only if it passes those bounds, does it act ultra vires. The Court must, therefore, resist the temptation to draw the bounds too tightly, merely according to its own opinion. There is a danger of judges, wrongly though unconsciously, substituting their own views for the views of the decision-maker who alone is charged and authorized by the Legislature or the Rule making authority to exercise its discretion. [R.v. Secretary of State for Trade and Industry (1989) 1 WLR 525; Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition)]. The Court must strive to apply an objective standard which leaves, to the deciding authority, the full range of choices which the legislature is presumed to have intended. [Administrative Law (H.W.R. Wade & C.F. Forsyth - Tenth Edition); R. v. Boundary Commission (1983) QB 600].

IV. CONCLUSION:

In proceedings under Article 226 of the Constitution of India, this Court would not take upon itself the task of deciding whether charge of the post of the Head of the Department should be entrusted to the petitioner or any other, as such a power has been conferred, by Clause 22(1) of the first statute of the IIT, on the Director; and this power conferred on the Director is required to be exercised by him in the manner laid down by the Board of Governors of the IIT. We consider it appropriate, in such circumstances, to direct the Board of Governors to frame guidelines in this regard at the earliest and, in any event, within three months from the date of receipt of a certified copy of this order. After such guidelines are framed by the Board of Governors, the Director shall, in terms thereof and for just and valid reasons, select a Professor/Associate Professor to be entrusted charge of the post of Head of the Department of Management Studies within one month thereafter. In case the second respondent considers it essential to have a Head of the Department of Management Studies, in the interregnum, charge of the said post may be given to the senior-most Professor of the department, till a person is selected in terms of the guidelines to be framed by the Board of Governors of the IIT.

The writ petition is, accordingly, disposed of. No costs.