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2018 DIGILAW 1518 (HP)

Dinesh Kumar v. Rajo

2018-08-16

SANJAY KAROL, VIVEK SINGH THAKUR

body2018
JUDGMENT Vivek Singh Thakur, J. - Present appeal has been preferred assailing the judgment passed by learned Single Judge, whereby appointment of the petitioner as part-time water carrier has been quashed for the reason that respondent No. 6 real uncle (Chacha) of the appellant, being President of School Management Committee (SMC), was a member of the Selection Committee, which interviewed the candidates including petitioner who were aspirants to the post of water carrier. 2. Main ground in the present appeal is that there is no evidence on record to establish that selection of the appellant was made under the influence of respondent No.6 and further that appellant is an orphan belonging to family of Below Poverty Line (BPL) and was appointed to the post in question in the year 2011 and learned Single Judge has dealt with the matter in hasty manner and without considering that disengagement of the appellant, after about six years, would render him jobless and without any source for his survival. Lastly, it is stated that now respondent No. l(petitioner in the writ petition) has also been appointed as a cook in some other institution since 2016 and therefore, no fruitful purpose is going to be served by quashing the appointment of the appellant only for the reason that his real uncle was member of Selection Committee particularly when there is nothing on record to establish any favoritism by respondent No. 6 in favour of the appellant. 3. The fact stated in para 7 to the writ petition that respondent No. 6 Dharam Pal was member of the Selection Committee for conducting the interview whereby appellant has been selected and appointed as part time water carrier and the pedigree table Annexure P-3 placed on record to substantiate the relationship of appellant with respondent No. 6 Dharam Pal have not been disputed by the appellant. 4. In preliminary submission in reply to the writ petition, filed on behalf of the respondent/State, relationship between respondent No. 6 Dharam Pal (SMC President) and appellant, has been denied for want of knowledge with further averment in reply to para 7 of petition that at the time of interview appellant had produced copy of Parivar Register issued by concerned Panchayat wherein respondent No.6 Dharam Pal was not member of family of appellant. In reply filed to petition of the appellant, relation with respondent No. 6 has not been denied but, with further averment that appellant has no other member in his family except his sister influencing the interview process by respondent No. 6 has been denied. 5. It is not the case of petitioner that respondent No. 6 is a member of family of appellant but specific allegation is that respondent No. 6, who was SMC President at the relevant point of time, was a real uncle of the appellant and said fact remains unrebutted. 6. The Apex Court in P.D. Dinakaran (I) vs. Judges Inquiry Committee and others reported in (2011)8 SCC 380 after considering previous judgments, has reiterated the applicability of principles of "real likelihood test" for determining validity of a decision assailed on the ground of bias. Relevant observations of the Apex Court in the said judgment are as under:- "41. In this case, we are concerned with the application of first of the two principles of natural justice recognized by the traditional English Law, i.e., Nemo debet esse judex in propria causa . This principle consists of the rule against bias or interest and is based on three maxims: (i) No man shall be a judge in his own cause; (ii) Justice should not only be done, but manifestly and undoubtedly be seen to be done; and (iii) Judges, like Caesar''s wife should be above suspicion. The first requirement of natural justice is that the Judge should be impartial and neutral and must be free from bias. He is supposed to be indifferent to the parties to the controversy. He cannot act as Judge of a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. He must be in a position to act judicially and to decide the matter objectively. A Judge must be of sterner stuff. His mental equipoise must always remain firm and undetected. He should not allow his personal prejudice to go into the decision-making. The object is not merely that the scales be held even; it is also that they may not appear to be inclined. A Judge must be of sterner stuff. His mental equipoise must always remain firm and undetected. He should not allow his personal prejudice to go into the decision-making. The object is not merely that the scales be held even; it is also that they may not appear to be inclined. If the Judge is subject to bias in favour of or against either party to the dispute or is in a position that a bias can be assumed, he is disqualified to act as a Judge, and the proceedings will be vitiated. This rule applies to the judicial and administrative authorities required to act judicially or quasi-judicially. xxxxxxxxx 62. In India, the Courts have, by and large, applied the ''real likelihood test'' for deciding whether a particular decision of the judicial or quasi judicial body is vitiated due to bias. In Manak Lai v. Dr. Prem Chand Singhvi (supra), it was observed: "Every member of a tribunal that sits to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and the essence ofjudicial decisions and judicial administration is that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done." 63. In A.K. Kraipak v. Union of India (supra), the rule of bias was discussed in some detail in the context of selection for appointment to the Indian Forest Service. Although, Naqishbund who was a candidate for selection to the All India Forest Service and was also a member of the selection board did not sit in the selection board at the time of his name was considered but participated in its deliberations when the names of other candidates, who were his rivals were considered. Two important questions considered by the Court were whether the rules of natural justice were applicable in cases involving exercise of administrative power by the public authorities and whether the selection was vitiated due to bias. The Court answered both the questions in affirmative. Two important questions considered by the Court were whether the rules of natural justice were applicable in cases involving exercise of administrative power by the public authorities and whether the selection was vitiated due to bias. The Court answered both the questions in affirmative. While answering the second question, the Court noted that even though Naqishbund had not participated in the deliberations of the committee when his name was considered, but he was present when the claims of rivals were considered and observed: "15 At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. " 64. In S. Parthasarthi v. State of A.P. (1974) 3 SCC 459 , Mathew, J. applied the ''real likelihood test'' and restored the decree passed by the trial Court which invalidated compulsory retirement of the appellant by way of punishment. In paragraph 16 of the judgment, Mathew, J. observed: "16. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision " 65. In Dr. G. Sarana v. University of Lucknow (supra), the Court referred to the judgments in A.K. Kraipak v. Union of India (supra), S. Parthasarthi v. State of A. P. (supra) and observed: "11 the real question is not whether a member of an administrative board while exercising quasi-judicial powers or discharging quasi-judicial functions was biased, for it is difficult to prove the mind of a person. What has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration " 66. In Ashok Kumar Yadov v. State of Haryana (1985) 4 SCC 417 , the Court while reiterating that the judgment in A.K. Kraipak''s case represents an important landmark in the development of administrative law and has contributed in a large measure to the strengthening of the rule of law, made a significant departure in cases involving selection by the Public Service Commissions. All this is evident from paragraph 18 of the judgment, which is extracted below: "18. We must straightaway point out that A.K. Kaipak case is a landmark in the development of administrative law and it has contributed in a large measure to the strengthening of the rule of law in this country. We would not like to whittle down in the slightest measure the vital principle laid down in this decision which has nourished the roots of the rule of law and injected justice and fair play into legality. We would not like to whittle down in the slightest measure the vital principle laid down in this decision which has nourished the roots of the rule of law and injected justice and fair play into legality. There can be no doubt that if a Selection Committee is constituted for the purpose of selecting candidates on merits and one of the members of the Selection Committee is closely related to a candidate appearing for the selection, it would not be enough for such member merely to withdraw from participation in the interview of the candidate related to him but he must withdraw altogether from the entire selection process and ask the authorities to nominate another person in his place on the Selection Committee, because otherwise all the selections made would be vitiated on account of reasonable likelihood of bias affecting the process of selection. But the situation here is a little different because the selection of candidates to the Haryana Civil Service (Executive) and Allied Services is being made not by any Selection Committee constituted for that purpose but it is being done by the Haryana Public Service Commission which is a Commission set up under Article 316 of the Constitution. It is a Commission which consists of a Chairman and a specified number of members and is a constitutional authority. We do not think that the principle which requires that a member of a Selection Committee whose close relative is appearing for selection should decline to become a member of the Selection Committee or withdraw from it leaving it to the appointing authority to nominate another person in his place, need be applied in case of a constitutional authority like the Public Service Commission, whether Central or State. If a member of a Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected When two or more members of a Public Service Commission are holding a viva voce examination, they are functioning not as individuals but as the Public Service Commission. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected When two or more members of a Public Service Commission are holding a viva voce examination, they are functioning not as individuals but as the Public Service Commission. Of course, we must make it clear that when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him. " (emphasis supplied) 67. The real likelihood test was again applied in Ranjit Thakur v. Union of India (1987) 4 SCC 611 . In that case, the appellant had challenged his dismissal from service on the ground of violation of the provision contained in Section 130 of the Army Act, 1950. The facts of that case were that the appellant, who was already serving sentence of 28 days rigorous imprisonment, is said to have committed another offence for which he was subjected to summary court-martial and was dismissed from service. Respondent No.4 who had earlier punished the appellant was a member of the summary court- martial in terms of Section 130 of the Army Act, 1950. The appellant was entitled to object the presence of respondent No.4 in the summary court-martial, but this opportunity was not given to him. The writ petition filed by the appellant was summarily dismissed by the High Court. This Court held that violation of the mandate of Section 130 militates against and detracts from the concept of a fair trial. 68. The Court then proceeded to consider whether respondent No.4 would have been biased against the appellant and observed: ( Ranjit Thakur vs. Union of India (1987)4 SCC 611 . "15 The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way. 16. "15 The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way. 16. It is the essence of a judgment that it is made after due observance of the judicial process; that the court or tribunal passing it observes, at least the minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non-judice ". 17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, "Am I biased?"; but to look at the mind of the party before him. " 69. In Secretary to Government. Transport Department v. Munuswamv Mudaliar 1988 (Supp.) SCC 651 , this Court considered the question whether a party to the arbitration agreement could seek change of an agreed arbitrator on the ground that being an employee of the State Government, the arbitrator will not be able to decide the dispute without bias. While reversing the judgment of the High Court which had confirmed the order of learned Judge, City Civil Court directing appointment of another person as an arbitrator, this Court observed: (SCCp. 654, para 12) "Reasonable apprehension of bias in the mind of a reasonable man can be a ground for removal of the arbitrator. A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposition. The reasonable apprehension must be based on cogent materials. See the observations of Mustill and Boyd, Commercial Arbitration 1982 Edn., p. 214. Halsbury''s Laws of England, 4th Edn., Vol. 2, para 551, p. 282 describe that the test for bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias." 70. The reasonable apprehension must be based on cogent materials. See the observations of Mustill and Boyd, Commercial Arbitration 1982 Edn., p. 214. Halsbury''s Laws of England, 4th Edn., Vol. 2, para 551, p. 282 describe that the test for bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias." 70. In Bihar State Mineral Development Corporation v. Encon Builders (I) (P) Ltd. (2003) 7 SCC 418 , the Court applied the rule of bias in the context of a provision in the agreement which empowered the Managing Director of the appellant to terminate the agreement and also act as arbitrator. This Court applied the rule that a person cannot be a judge of his own cause and observed: (SCC pp.423-24, para 18) "18. Actual bias would lead to an automatic disqualification where the decision-maker is shown to have an interest in the outcome of the case. Actual bias denotes an arbitrator who allows a decision to be influenced by partiality or prejudice and thereby deprives the litigant of the fundamental right to a fair trial by an impartial tribunal. " 71. The principles which emerge from the aforesaid decisions are that no man can be a Judge in his own cause and justice should not only be done, but manifestly be seen to be done. Scales should not only be held even but it must not be seen to be inclined. A person having interest in the subject matter of cause is precluded from acting as a Judge. To disqualify a person from adjudicating on the ground of interest in the subject matter of lis, the test of real likelihood of the bias is to be applied. In other words, one has to enquire as to whether there is real danger of bias on the part of the person against whom such apprehension is expressed in the sense that he might favour or disfavour a party. In each case, the Court has to consider whether a fair minded and informed person, having considered all the facts would reasonably apprehend that the Judge would not act impartially. To put it differently, the test would be whether a reasonably intelligent man fully apprised of all the facts would have a serious apprehension of bias. In each case, the Court has to consider whether a fair minded and informed person, having considered all the facts would reasonably apprehend that the Judge would not act impartially. To put it differently, the test would be whether a reasonably intelligent man fully apprised of all the facts would have a serious apprehension of bias. In cases of non-pecuniary bias, the ''real likelihood'' test has been preferred over the ''reasonable suspicion'' test and the Courts have consistently held that in deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct. We may add that real likelihood of bias should appear not only from the materials ascertained by the complaining party, but also from such other facts which it could have readily ascertained and easily verified by making reasonable inquiries. 72. In Halsbury''s Laws of England [Vol. 29(2) 4th Edn. Reissue 2002, para 560 page 379], the test of disqualification due to apparent bias has been elucidated in the following words: "560. Test of disqualification by apparent bias. The test applicable in all cases of apparent bias, whether concerned with justices, members of inferior tribunals, jurors or with arbitrators, is whether, having regard to the relevant circumstances, there is a real possibility of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard with favour, or disfavour, the case of a party to the issue under consideration by him. In considering this question all the circumstances which have a bearing on the suggestion that the judge or justice is biased must be considered. The question is whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased Cases may occur where all the justices may be affected by an appearance of bias, as, for instance, where a fellow justice or the justices'' clerk is charged with an offence; where this occurs, it has been recommended that justices from another petty- sessional division should deal with the case, or, if the offence is indictable, that it should be committed for trial by a jury. It is because the court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but be seen to be done is applied, and the court gives effect to the maxim by examining all the material available and concluding whether there is a real possibility of bias. " 7. It is true that being a SMC Chairman, respondent No.6, uncle of appellant was ex-officio member of the Selection Committee and he had not managed his entry in the Selection Committee on his own. However, as his real nephew was one of the aspirants of the post, he would have recused from the Selection Committee to rule out any favour to the appellant and bias against other candidates. Respondent No. 6, technically, may not be a member of the family of appellant, but it is an undisputed fact that he is real brother of the father of the appellant. For such a relationship between the member of the Selection Committee and the candidate to be interviewed, definitely an inference of reasonable likelihood of bias, taking into consideration human probabilities and ordinary course of human conduct, can be drawn. 8. In the light of above exposition of law and facts and circumstances of the case, learned Single Judge has rightly decided the case after putting reliance on pronouncement of the Apex Court in A.K. Kraipak and others vs. Union of India and others 1969(2) SCC 262 and Ashok Kumar Yadav and others vs. State of Haryana and others (1985)4 SCC 417 . 9. Learned counsel for the appellant has failed to point out any material on record which either has been ignored or wrongly appreciated by the learned Single Judge. No case for interference is made out. Learned Single Judge has rightly quashed the appointment of appellant. We find no illegality or infirmity in passing the impugned judgment, hence the same is upheld. Appeal is accordingly dismissed.