Meghalaya High Court
Smti Angela Rangad, vs The State Of Meghalaya And Others on 27 May, 2013
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
AT SHILLONG.
WP(C) NO.(SH)254/2012
Smti. Angela Rangad,
D/o Dr. (Mrs.) L.D. Sawian,
C/o Dr. M.S. Dunn, Lily Cottage,
Harisava, Laban, Shillong 793004,
East Khasi Hills District, Meghalaya. :::: Petitioner
-Vs-
1. The State of Meghalaya represented by the
Chief Secretary to the Govt. of Meghalaya,
Shillong.
2. The Union of India represented by the
Secretary to the Govt. of India,
Ministry of Women & Child Welfare,
New Delhi.
3. The Executive Director,
National Mission for Empowerment of Women
& National Resource Centre for Women,
Ministry of Women & Child Welfare,
Govt. of India, Room No.119, Hotel Janpath,
New Delhi 110001.
4. The Principal Secretary,
Social Welfare Department,
Govt. of Meghalaya, Shillong.
5. The Deputy Secretary,
Social Welfare Department,
Govt. of Meghalaya, Shillong.
6. The Director of Social Welfare,
Govt. of Meghalaya, Shillong.
7. Departmental Selection Committee
for selection and recommendation of
candidates for appointment to the Post of
Mission Director, State Resource Centre for
Women, through its Chairman.
8. Smti. Loma Nora Jyrwa,
Resident of Mount View, Cleve Colony,
Shillong-793003, East Khasi Hills District. :::: Respondents.
WP(C) NO.(SH)254/2012 Page 1 of 20
BEFORE
THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH
For the Petitioner : Mr. HS Thangkhiew, Sr.Adv,
Mr. N. Mozika, Adv.
For the Respondents : Mr. SP Mahanta, AAG, Meghalaya,
Mr. S Sen Gupta, GA.
Mr. R Gurung, Adv for respdt.No.8
Date of hearing : 07.05.2013
Date of Judgment & Order : 27.05.2013
In this writ petition, the petitioner is assailing the order dated
28.08.2012 for appointing the respondent No.8 Smti. Loma Nora Jyrwa as
Mission Director under the State Resource Centre for Women on contract
basis for initially a period of one year w.e.f. from the date of her joining, for
that, one of the Members of the Departmental Selection Committee, on the
recommendation of it, the respondent No.8 had been appointed as Mission
Director, more particularly, the Director of Social Welfare Department, Govt.
of Meghalaya is malafide and biased.
2. Heard Mr. HS Thangkhiew, learned senior counsel assisted by
Mr. N Mozika, learned counsel for the petitioner and Mr. SP Mahanta,
learned Addl. Advocate General, Meghalaya assisted by Mr. S Sen Gupta,
learned counsel for the State respondents. Also heard Mr. R Gurung, learned
counsel for the respondent No.8.
3. Factual backgrounds:- On 08.03.2010, the Govt. of India
launched the National Mission for Empowerment of Women for the purpose
of empowerment of women socially and educationally. At the National level,
the Mission has a National Mission Authority under the Chairmanship of the
WP(C) NO.(SH)254/2012 Page 2 of 20
Prime Minister and is assisted by the Mission Directorate and the National
Resource Centre for Women. At the State level, the Mission envisages
setting up of State Mission Authority under the Chairmanship of the Chief
Minister who will be provided the requisite support by the State Resource
Centre for Women. The Govt. of India under the letter of the Secretary,
Ministry of Women and Child Development Department, Govt. of India being
letter No.D.O. No.4-2/2010-WW dated 05.04.2010 informed the State Govt.
about the Mission and also requested for initiation of the process for notifying
the State Mission Authority at the earliest. The Ministry of Women & Child
Development Department, Govt. of India, vide D.O. letter dated 22.04.2010
and the D.O. letter dated 25.05.2010, requested the State Govt. to constitute
a State Resource Centre for Women (for short "SRCW") for operationalising
the National Mission for Empowerment of Women. The Central Govt. also
prescribed the constitution of State Resource Centre for Women which is to
comprise of a Project Advisor and a State Co-ordinator and other support
staff. The Central Govt. laid down the qualifications, skills and experience
etc. for selection of candidates for appointment to the said posts of Project
Advisor and State Co-ordinator in the SRCW. This case is concerned with
the post of Project Advisor and the qualifications and experience etc. for
selection of the candidate for appointment to the post of Project Advisor are:-
POST QUALIFICATIONS, EXPERIENCE AND SKILLS
Project Advisor .Master's Degree in Social Work/Economics/Women's
Studies/Law/Governance/ and any other related filed. Ph.D. in
relevant field is desirable.
. Minimum experience of 7-10 years of working on women's
issue, with at least 5 years spent in managing and leading
projects and teams. Previous experience of working with the
Government or on policy issues is desirable.
. Maximum age limit of 50 years.
. Previous publications, articles and papers on the area of
expertise, with particular emphasis on women is desirable.
. Excellent understanding and knowledge of women's issues
WP(C) NO.(SH)254/2012 Page 3 of 20
and policies and programmes of the Government, at national
and state level.
. Knowledge of monitoring and evaluation techniques as well
as conducting impact assessment studies.
. Should be prepared to travel extensively within the State for
consultations with stakeholders, carrying out impact
assessment and other studies.
. Qualified women are encouraged to apply.
4. The maximum age limit for the candidates for the post of
Project Advisor is 50 years and the qualifications are Master's Degree in
Social Work/Economics/Women's Studies/Law/Governance/ and any other
related field. Ph.D. in relevant field is desirable. Pursuant to the said letters of
the Govt. of India, the respondent No.5, the Deputy Secretary, Social Welfare
Department, Govt. of Meghalaya, Shillong, under his letter dated 09.12.2011,
informed the respondent No.2, the Union of India about the approval of the
Govt. of Meghalaya for setting up of SRCW, but for the reasons best known
to the respondents, the respondent No.5 under the said letter dated
09.12.2011, had informed the Central Govt. that for the State Resource
Centre for Women i.e. SCRW, it should have a Mission Director in place of
the Project Advisor with the same consolidated fees of Rs.50,000/- pm as
applicable to the post of Project Advisor.
5. The Project Advisor is to head the SRCW under the State
Centre Mission i.e. National Commission for Women Empowerment at the
State level and as such, the Project Advisor is the most important and
essential concomitant of the Mission at the State level. In response to the
said letter of the respondent No.5, the Executive Director, National Mission
for Empowerment of Women and National Resource Centre for Women,
Ministry of Women & Child Welfare, Govt. of India under his letter dated
16.12.2011, informed the State Govt. i.e. the respondent No.5, that "they
have no objection if the State desired to change the nomenclature of
WP(C) NO.(SH)254/2012 Page 4 of 20
the Project Advisor to Mission Director as long as he/she performs the
expected roles and responsibilities stated in the Guidelines. You are
requested to adhere to the qualifications and experience prescribed in
the guidelines appointing the State Mission Director." Under the
qualifications and experience prescribed by the Central Govt. for the post of
Project Advisor, the maximum age of the candidates for the post of Project
Advisor should be 50 years. As prescribed in the guidelines (i.e. Central
Govt. Guidelines), the appointments to the posts of Project Advisor (Mission
Director) for the State of Meghalaya and the State Co-ordinator in the SRCW
were to be made through a process of selection and all the eligible/qualified
women were to be encouraged to apply for the said posts. But in clear
infraction of the prescribed guidelines and also without following the
constitutional scheme for appointment of the public posts, the respondent
No.6, the Director of Social Welfare Department, Govt. of Meghalaya,
Shillong without any advertisement for the said post, under his letter dated
17.02.2012 forwarded the curriculum vitae of only one person i.e. the person
of his choice none other than the respondent No.8, Smti.Loma Nora Jyrwa to
the Principal Secretary to the Govt. of Meghalaya, Social Welfare
Department for favour of necessary action and also recommended the case
of the respondent No.8 to the State Govt.
6. It is categorically pleaded in the writ petition that the motive of
the respondents were to appoint the respondent No.8 to exclusion of all other
eligible candidates as Mission Director in the SRCW by relaxing the upper
age limit for the candidates for the post of Mission Director. Such motive of
the respondents for appointing the respondent No.8 at the exclusion of other
eligible candidates as Mission Director by relaxing the upper age limit were
clearly reflected in the File, which reads as follows:-
"NO.SW/ALT.15/79 DT.17.2.12 OF DSW, Megh. Shg SI. 175-189
WP(C) NO.(SH)254/2012 Page 5 of 20
NO.SW/WW.11/2012/5403,dt.15.2.12 of DSW, Megh.Shg.SI.190-
196
U/Secy
SI.175-189 may pl. be seen. The Director of Social
Welfare has seen the curriculum vitae of Smt.L.N.Jyrwa,
Addl.DSW, preferably for engaging her as the Mission Director
in the State Resource Centre for Women.
Setting up of the State Mission Authority and State
Mission Authority and State Resource Centre for women has
received Cabinet approval on 24.08.2011, and the Department
has been advised to examine the feasibility of having dedicated
Mission Director for the purpose. We have also received the
approval from the GOI to change the nomenclature of Project
Adviser to Mission Director vide letter at 31.160, with the advice
to adhere to the qualification and experience prescribed in the
guidelines.
As per the terms of reference at Sl.186, the maximum
age limit for appointment as Mission Director is 50 years.
Smti.L.N.Jyrwa, Addl.DSW will be superannuating w.e.f.
30.042012 at the age of 58 years. On examination of her
curriculum vitae, it appears that she possess all the suggest
qualification, experience and skill, except the age bar.
Relaxation of age bar may perhaps be taken up with the Govt.
of India to enable other qualified women to apply.
Further,Sl.190-196 may also pl. be seen, regarding the
letter received from the DSW, requesting the State Govt. to
take up with the GOI for relaxation of norms for the post of
State Co-ordinator, Research Officer and Assistant Co-
ordinator.
As per the term of reference giving by the GOI, these
post(s) are to be filled up by candidates having PHD/MPHC
Degree in the relevant field with 5-7 years experience.
We have been requested to take up the matter with the
GOI to relax the norms for the post(s) to a Master's Degree in
Social Work/Economic/Women's Studies/Law, with 4 years
experience only.
We may perhaps take up with the GOI, with prior appl.of
Prn.Secy.(SW)."
7. It is the further case of the writ petitioner that relaxation of the
upper age limit of the candidates for the post of Mission Director is only for
accommodating the respondent No.8, who had already attained more than
58 years of age. The respondent No.6, the Director of Social Welfare
Department, Govt. of Meghalaya again under his letter dated 07.03.2012 to
the Principal Secretary to the Govt. of Meghalaya, Social Welfare
Department, submitted a proposal for relaxation of the norms for post-wise
WP(C) NO.(SH)254/2012 Page 6 of 20
under the State Resource Centre for Women. The relevant portion of the said
letter of the respondent No.6 reads as follows:-
" GOVERNMENT OF MEGHALAYA
DIRECTORATE OF SOCIAL WELFARE
SHILLONG.
No.SW/WW/1/2010/5937 Dated Shillong, the 7th March, 2012.
From : Shri. H.M. Shangpliang, MCS,
Director of Social Welfare,
Meghalaya, Shillong.
To. : The Principal Secretary to the Govt. of
Meghalaya, Social Welfare Department.
Ref : Term of Reference-Selection of
Candidates for State Resource Centre for
Women.
Sir,
In continuation to this office letter no. under
reference and as per discussions at the Review meeting held
with the Principal Secretary on 29th February, 2012, I have the
honour to submit the proposal for relaxation of norms Post-wise
under the State Resource Centre for Women.
Government of India may kindly be requested to
relax the norms for the post as stated above.
Yours faithfully,
Sd/-
(Shri.H.M.Shangpliang)
Director of Social Welfare
Meghalaya, Shillong.
TERM OF REFERENCE - for selection of Candidates for State
Resource Centre for women
1. Name of Post: MISSION DIRECTOR/PROJECT ADVISER
2. No. of Post: 1 post
3. Age Limit: 35-50 years
4. Nature of appointment: Contract with fixed salary of Rs.50,000/-pm
5. Qualification: Master Degree in Social/Work/Economics/Women's
Studies/Law
6. Desirable: Ph.D. in relevant field
7. Experiences: 7-10 years working on women issues at State Level
8. Preferences: a) Previous publications, articles and papers on the
area of expertise, with particular emphasis on women
is desirable.
WP(C) NO.(SH)254/2012 Page 7 of 20
b) Excellent understanding and knowledge of women's
issues and policies and programmes of the
Government, at the National and State Level.
c) Knowledge of monitoring and evaluation techniques
as well as conducting impact assessment studies.
d) Should be prepared to travel extensively within the
State for consultations with stakeholders, carrying out
impact assessment and other studies.
Proposed Relaxation:
1. Age Limit: 35 above and retired Govt.servant experienced in
Social Work
2. Desirable: Ph.D. in relevant filed may not be made compulsory
3. Experiences: Preferably working on Gender issues with 5 years
experience and familiar with gender budgeting."
8. The respondent No.6, the Director of Social Welfare
Department under his said letter dated 07.03.2012, had made the proposal to
the State Govt. for relaxation of the upper age limit of the candidates for the
post of Mission Director for the purpose of accommodating the respondent
No.8, according to the pleadings of the writ petitioner in the writ petition,
inasmuch as, the respondent No.8 who was working as Additional Director of
Social Welfare Department, Govt. of Meghalaya was about to retire from
service at the time the said proposal was made.
9. The Central Govt. under the letter of the Executive Director,
NRCW/NMEW (no date), alleged to have given the approval to go ahead
recruiting officers for various posts based on the qualifications and
experience prescribed in the guidelines. Relaxation of age norm for the
Project Advisor/Mission Director, as proposed by the State Govt. had been
approved. The qualified persons or a retired Government officials or non-
officials could be considered for appointment to the post of Project Advisor
initially for a year based on the performance report further extension could be
considered. It is the further case of the writ petitioner that with a motive to
appoint the respondent No.8 with the assistance of the respondent No.6 i.e.
WP(C) NO.(SH)254/2012 Page 8 of 20
the Director of Social Welfare Department, Govt. of Meghalaya, Shillong,
issued an advertisement dated 18.05.2012 for the post of Mission Director by
relaxing the upper age limit of the candidates for the post of Mission Director
i.e. 50 years and also by mentioning the qualifications for the post of Mission
Director not in conformity with the educational qualifications, experience and
age prescribed by the Central Govt. under the said guidelines for the post of
Project Advisor (Mission Director). The said advertisement was also issued
by the respondent No.6 i.e. the Director of Social Welfare Department, Govt.
of Meghalaya, Shillong.
10. In response to the said advertisement dated 18.05.2012, the
petitioner and others including the respondent No.8 had applied for the said
post. The interview of the candidates was held on 30.07.2012 by the
Selection Committee for selection and recommendation of candidate for the
post of Mission Director. The Selection Committee recommended the
respondent No.8 i.e. Smti.Loma Nora Jyrwa for the post of Mission Director
and the petitioner was placed at Sl. No.2 in the Select List i.e. No.1 was the
respondent No.8 and No.2 is the petitioner herself. On the recommendation
of the said Selection Committee, the respondent No.8 was appointed as
Mission Director for a period of one year initially w.e.f. the date of joining vide
impugned order dated 28.08.2012. It is the case of the petitioner that the
petitioner came to know the constitution of the Selection Committee which
consists of the respondent No.6 i.e. the Director of Social Welfare
Department, Govt. of Meghalaya, Shillong, who had taken all the steps
mentioned above for appointing the respondent No.8 by giving undue favours
to her to the post of Mission Director only after appearing for interview and it
is also the case of the petitioner that the recommendation of the respondent
No.8 by the Selection Committee which consists of the respondent No.6 is
vitiated inasmuch as, the respondent No.6 is biased and malafide.
WP(C) NO.(SH)254/2012 Page 9 of 20
11. The State respondents filed their affidavit-in-opposition. In their
affidavit-in-opposition, the respondents are not denying the said letters
written by the respondent No.6 for relaxing the upper age limit, the
experience and qualifications prescribed by the Central Govt. for
appointment of the candidate to the post of Project Advisor/Mission Director
and also the State respondents are not denying that under the said letters of
the respondent No.6, the curriculum vitae of the respondent No.8 had been
forwarded to the Govt. and also made a proposal for appointment of the
retired Govt. employees. It is a fact that the respondent No.8 was at the fag
end of her service at the time the proposal had been made for appointment
of the retired Govt. servants/officers to the post of Mission Director. But the
only reply of the State respondents in their affidavit-in-opposition are that the
curriculum vitae of the respondent No.8 submitted by the respondent No.6
under his letter dated 07.03.2012 was only to enable the concerned
department to examine the possibility to utilize the skill and experience of the
respondent No.8 in any appropriate capacity and not for filling up the post of
Mission Director in particulars. The Selection Committee recommended the
name of the respondent No.8 based on merit and performance at the
interview. The Departmental Selection Committee consists of 4 members
and the recommendation of the candidates was on the basis of the score-
sheets of the panel members of the Selection Committee.
12. The Apex Court in a number of cases had ruled that it is the
duty of the Court to scrutinize the allegations of malafide or bias or improper
motive on the part of the person in authority. For this point, it would be suffice
to refer to the decision of the Apex Court (Constitution Bench) in S.G.
Jaisinghani v. Union of India and others: AIR 1967 SC 1427.
13. It is fairly well settled that every member of a tribunal that is
called upon to try issues in judicial or quasi-judicial proceedings must be able
WP(C) NO.(SH)254/2012 Page 10 of 20
to act judicially; and it is of the essence of judicial decisions and judicial
administration 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 had
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. (Ref:- Manak Lal, Advocate v. Dr. Pren Chand
Singhvi and others: AIR 1957 SC 425).
14. In the case of allegations for bias and impartiality to a member
of the Tribunal/Committee, 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/Committee.
15. The allegations of malafide are often more easily made than
proved, and the very seriousness of such allegations demands proof of a
high order of credibility. The Court would, therefore, be slow to draw dubious
inferences from incomplete facts placed before it by a party. In the absence
of necessary particulars of the charge of bias and malafide making out a
prima facie case in the writ petition, the High Court is justified in refusing to
carry on investigation into the allegations of malafides. Therefore, in the case
of the charge of bias and malafide, there should be necessary particulars for
making out a prima facie case in the writ petition.
16. In the instant case, the necessary particulars for charging bias
and malafide against the respondent No.6, who took the active part in
appointing the respondent No.8 to the post of Mission Director to the extent
indicated above had been mentioned in the pleadings of the writ petitioner in
the writ petition. It appears that the petitioner makes out a prima facie case in
WP(C) NO.(SH)254/2012 Page 11 of 20
the writ petition for justifying this Court to decide if, the respondent No.6 is
bias and malafide. (Ref:- (1) E.P. Royappa vs. State of Tamil Nadu and
Anr: (1974) 4 SCC 3 and (2) Smt.Swaran Lata vs. Union of India and
others: (1979) 3 SCC 165).
17. There is no straitjacket formula in a case of personal bias, for
deciding, if, there is personal bias or not. But acceptable tests are (i) the real
likelihood of bias; (ii) whether a reasonable intelligent man, fully apprised of
all the circumstances, would feel a serious apprehension of bias and (iii) not
to the extent that there should be clear evidence of bias/existence of bias. In
Halsbury's Laws of England, 4th Edn., Vol.2, para 551, it has been
indicated that the test of bias is whether a reasonable intelligent man, fully
apprised of all the circumstances, would feel a serious apprehension of bias.
This principle had been accepted by the Apex Court in Manak Lal v. Dr.
Prem Chand: AIR 1957 SC 425. De Smith in his Judicial review of
Administrative Action, (1980) P.262 had considered what are "real
likelihood of bias or reasonable suspicion of bias" and observed that:
"Real Likelihood of Bias or Reasonable Suspicion of Bias
A "real likelihood" of bias means at least
substantial possibility of bias. The court, it has been said, will
judge of the matter "as a reasonable man would judge of any
matter in the conduct of his own business". The test of real
likelihood of bias, which has been applied in a number of
leading cases in magisterial and liquor licensing, is based on
the reasonable apprehensions of a reasonable man fully
apprised of the facts. It is no doubt desirable that all judges, like
Caesar's wife, should be above suspicion; but it would be
hopeless for the courts to insist that only "people who cannot
be suspected of improper motives" were qualified at common
law to discharge judicial functions, or to quash decisions on the
strength of the suspicions of fools or other capricious and
unreasonable people.
What is the position if the court is satisfied, on the
evidence before it, that there was no real likelihood of bias but
is nevertheless of the opinion that a reasonable man, at the
time when the decision under review was made, could well
have suspected that the tribunal would be biased? Does the
public interest nevertheless demand that the original decision
be set aside? The cases do not speak with one voice on this
matter. The courts have often quashed decisions strength of
WP(C) NO.(SH)254/2012 Page 12 of 20
the reasonable suspicions of the party aggrieved, without
having made any finding that a real likelihood of bias in fact
existed. In 1954 the Divisional Court of the Queen's Bench
Division, after having reviewed the authorities, held that "real
likelihood" was the proper test, and that a real likelihood of bias
had to be "made to appear not only from the materials in fact
ascertained by the party complaining, but from such further
facts as he might readily have ascertained and easily verified in
the course of his inquiries. "This might be regarded as but
another formulation of the "reasonable suspicion" test, for it is
the duty of a reasonable man to make reasonable inquiries; if,
after having made his inquiries, he is still left with the
impression that there was a real likelihood that the tribunal
would be biased against him, it is the duty of the Court to quash
the decision although, on the full information available to it, it is
satisfied that his suspicions were unfounded? The answer
given by Devlin L.J. in a subsequent case was in the negative.
Whether a real likelihood of bias existed was to be "determined
on the probabilities to be interfered from the circumstances, not
upon the basis of the impressions that might reasonably be left
on the minds of the party aggrieved or the public at large.
However, the pendulum has now swung towards
a test of reasonable suspicion, founded on the apprehensions
of a reasonable man who had taken reasonable steps to inform
himself of the material facts. "Reasonable suspicion" tests look
mainly to outward appearances, "real likelihood" tests focus on
the court's own evaluation of the probabilities; but in practice
the tests have much in common with one another, and in the
vast majority of cases they will lead to the same result. For the
courts to retain both tests as alternative methods of approach is
unlikely to cause serious uncertainty, and there may be
advantages in preserving a measure of flexibility. It would be
surprisingly, surely, if a court were to refuse to set aside a
decision on the ground that a reasonable observer could not
have discovered facts that subsequently came to light and
which indicated to the court that there was a real likelihood of
bias in the adjudicator."
18. In the case of personal bias, two tests are there: (i) likelihood of
bias and (ii) that there is reasonable case of bias. But nevertheless, the
opinion of likelihood of bias is that of a reasonable man, at the time the
decision under review was made, could well have suspected that the
Tribunal would be bias? There is another formula "reasonable suspicion"
tests for it is the duty of a reasonable man to make reasonable inquiries, if,
after having made his inquiries, he is still left with the impression that there
was a real likelihood that the tribunal would be biased against him, is it is the
duty of the Court to quash the decision. De Smith observed that the
WP(C) NO.(SH)254/2012 Page 13 of 20
apprehension of a reasonable man who had taken reasonable steps to
inform himself of the material facts and "reasonable suspicion" tests look
mainly to outward appearances. The inferences of malafide can be drawn
only on the basis of factual matrix and not merely on the basis of
insinuations, conjectures and surmises. (Ref:- M Sankarannarayan, IAS v.
State of Karnataka and others: (1993) 1 SCC 54).
19. The Apex Court in (Constitution Bench) in A.K. Kraipak and
others vs. Union of India and others: 1969 (2) SCC 262, held that the real
question is not whether he was biased, for it is difficult to prove the state of
mind of a person. There must be a reasonable likelihood of bias and a mere
suspicion of bias is not sufficient. In deciding the question of bias human
probabilities and ordinary course of conduct must be taken into
consideration. In A.K. Kraipak's case (Supra) one of the members of the
Selection Committee is said to have interest in preparation of the list of the
selected candidates in order of preference and that member was not in the
Selection Committee at the time of consideration of his case, even then the
Apex Court held that preparation of the selected candidates in order of
preference is vitiated as the said member (lone member) of the Selection
Committee is biased. Paras 16, 21, 22, 23 & 24 of the SCC in A.K.
Kraipak's case (Supra) held as follows:-
"16. The members of the selection board other than
Naqishbund, each one of them separately, have filed affidavits
in this Court swearing that Naqishbund in no manner influenced
their decision in making the selections. In a group deliberation
each member of the group is bound to influence the others,
more so, if the member concerned is a person with special
knowledge. His bias is likely to operate in a subtle manner. It is
no wonder that the other members of the selection board are
unaware of the extent to which his opinion influenced their
conclusions. We are unable to accept the contention that in
adjudgingthe suitability of the candidates the members of the
board did not have any mutual discussion. It is not as if the
records spoke of themselves. We are unable to believe that the
members of selection board functioned like computers. At this
stage it may also be noted that at the time the selections were
made, the members of the selection board other than
WP(C) NO.(SH)254/2012 Page 14 of 20
Naqishbund were not likely to have known that Basu had
appealed against his supersession and that his appeal was
pending before the State Government. Therefore there was no
occasion for them to distrust the opinion expressed by
Naqishbund. Hence the board in making the selections must
necessarily have given weight to the opinion expressed by
Naqishbund.
21. It was next urged by the learned Attorney-General that after
all the selection board was only a recommendatory body. Its
recommendations had first to be considered by the Home
Ministry and thereafter by the U.P.S.C. The final
recommendations were made by the U.P.S.C. Hence
grievances of the petitioners have no real basis. According to
him while considering the validity of administrative actions
taken, all that we have to see is whether the ultimate decision is
just or not. We are unable to agree with the learned Attorney-
General that the recommendations made by the selection
board were of little consequence. Looking at the composition of
the board and the nature of the duties entrusted to it we have
no doubt that its recommendations should have carried
considerable weight with the U.P.S.C. If the decision of the
selection board is held to have been vitiated, it is clear to our
mind that the final recommendation made by the Commission
must also be held to have been vitiated. The recommendations
made by the Union Public Service Commission cannot be
disassociated from the selections made by the selection board
which is the foundation for the recommendations of the Union
Public Service Commission. In this connection reference may
be usefully made to the decision in Regina v. Criminal Injuries
Compensation Board Ex. Parte Lain (Supra).
22. It was next urged by the learned Attorney-General that the
mere fact that one of the members of the Board was biased
against some of the petitioners cannot vitiate the entire
proceedings. In this connection he invited our attention to the
decision of this Court in Summer Chand Jain v. Union of India
and Anr.: Writ Petition No. 237/1966 decided on 4-5-1967.
Therein the Court repelled the contention that the proceedings
of a departmental promotion committee were vitiated as one of
the members of that committee was favourably disposed
towards one of the selected candidates. The question before
the Court was whether the plea of malafides was established.
The Court came to the conclusion that on the material on
record it was unable to uphold that plea. In that case there was
no question of any conflict between duty and interest nor any
members of the departmental promotion committee was a
judge in his own case. The only thing complained of was that
one of the members of the promotion committee was
favourably disposed towards one of the competitors. As
mentioned earlier in this case we are essentially concerned
with the question whether the decision taken by the board can
be considered as having been taken fairly and justly.
23. One more argument of the learned Attorney-General
remains to be considered. He urged that even if we are to hold
WP(C) NO.(SH)254/2012 Page 15 of 20
that Naqishbund should not have participated in the
deliberations of the selection board while it considered the
suitability of Basu, Baig and Kaul, there is no ground to set
aside the selection of other officers. According to him it will be
sufficient in the interest of justice if we direct that the cases of
Basu, Baig and Kaul be reconsidered by a Board of which
Naqishbund is not a member. Proceeding further he urged that
under any circumstance no case is made out for disturbing the
selection of the officers in the junior scale. We are unable to
accept either of these contentions. As seen earlier Naqishbund
was a party to the preparation of the select list in order of
preference and that he is shown as No. 1 in the list. To that
extent he was undoubtedly a judge in his own case, a
circumstance which is abhorrent to our concept of justice. Now
coming to the selection of the officers in the junior scale
service, the selections to both senior scale service as well as
junior scale service were made from the same pool. Every
officer who had put in a service of 8 years or more, even if he
was holding the post of an Assistant Conservator of Forests
was eligible for being selected for the senior scale service. In
fact some Assistant Conservators have been selected for the
senior scale service. At the same time some of the officers who
had put in more than eight years of service had been selected
for the junior scale service. Hence it is not possible to separate
the two sets of officers.
24. For the reasons mentioned above these petitions are
allowed and the impugned selections set aside. The Union
Government and the State Government shall pay the costs of
the petitioners.
20. The Apex Court in Ratan Lal Sharma vs. Managing
Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and
others: (1993) 4 SCC 10, held that the real likelihood of bias means at least
substantial possibility of bias. Answer to the question whether there was a
real likelihood of bias depends not upon what actually was done but upon
what might appear to be done. The test of bias is whether a reasonable
intelligent man, fully apprised of all the circumstances, would feel a serious
apprehension of bias. The relevant portion of paras 9, 10 & 11 of the SCC in
Ratan Lal Sharma's case (Supra) held as follows:-
9."...........................In State of Orissa v. BinapaniDei: (1967) 2
SCR 625: AIR 1967 SC 1269 :(1967) 2 LLJ 266, this Court also
accepted the application of the principle of natural justice in the order
which is administrative in character. It was observed by Shah,J. :
WP(C) NO.(SH)254/2012 Page 16 of 20
"It is true that the order is administrative in character, but even an administrative order which involves civil consequences ... must be made consistently with the rules of natural justice."
Similar view was also taken in A.K. Kraipak v. Union of India:
(1969) 2 SCC 262:(1970)1 SCR 457 and the observation of Justice Hedge may be referred to: (SCC p.272, para 20).
"........Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially. there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice, one fails to see why those rules should be made inapplicable to administrative enquiries."
There are number of decisions where application of principle of natural justice in the decision making process of the administrative body having civil consequence has been upheld by this Court but it is not necessary to refer to all such decisions. Prof Wade in his Administrative Law, (1988) at page 503, has very aptly observed that the principles of natural justice are applicable to almost the whole range of administrative powers.
10. ......................It has been observed by this Court in Union of India v. P.K. Roy.:(1968) 2 SCR 186: AIR 1968 SC 850: (1970) 1 LLJ 633:
"The extent and application of the doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case."
Similar view was also expressed in A.K Kraidak's case: (1969) 2 SCC 262: (1970)1 SCR 457. This Court observed: (SCC pp. 272-73, para
20) "What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."
Prof. Wade in his Administrative Law has succinctly summarised the principle of natural justice to the following effect:
WP(C) NO.(SH)254/2012 Page 17 of 20"It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: not as to their scope and extent. Everything depends on the subject matter, the application for principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject- matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant: there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice depend on the facts and the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth. ........................"
11. ......................... For appreciating a case of personal bias or bias to the subject matter the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place. De Smith in his Judicial Review of Administrative Action, (1980) at pace 262 has observed that real likelihood of bias means at least substantial possibility of bias. In R. v. Sunderland Justices (1901) 2 KB 357, 373 it has been held that the Court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business. In R versus Sussex Justices (1924) 1 KB 256, 259: 1923 All ER Rep 233 it has been indicated that answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done. In Halsbury Laws of England, (4th Edn.) Vol.2, para 551, it has been indicated that the test of bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias. The same principle has also been accepted by this Court in Manak Lal v. Dr. Prem Chand: (1957) SCR 575: AIR 1957 SC 425. This Court has laid down that 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."
21. The Apex Court in Badrinath vs. Government of Tamil Nadu:
(2000) 8 SCC 395, held that Wednesbury principles apply in the judicial review of the DPC's assessment and so also the principles of a reasonable likelihood of bias applies in that case because serious allegation of bias had been made out against one of the members of the Selection Committee for the fact that the member was defending a writ appeal in which appellant (candidate) contended that the State Government's denial to sanction prosecution of that member was not justified and for that, as the said WP(C) NO.(SH)254/2012 Page 18 of 20 member (one member) is biased, recommendation of the Selection Committee is not acceptable. The relevant decision of the Apex Court in Badrinath case (Supra) read as follows:-
"Although no bias can be imputed from that fact alone in the present case, there are other important facts which clearly make out a case of real likelihood of bias on the part of V. The appellant had delivered a speech at a public function on 7-9- 1973 criticising the "time capsule" buried in the precincts of Red Fort at Delhi. The Government of T.N. started a disciplinary inquiry but later dropped the same on 25-8-1977. However, on 24-8-1977, a news item appeared in The Indian Express stating that a government spokesman charged the appellant as trying to "sabotage the civil services from within". It was later found the said statement was made by V. The appellant unsuccessfully sought permission from the Government to prosecute V. His writ petition although was dismissed by a Single Judge but a Division Bench of the High Court held that the refusal to grant sanction was not justified and ought to have been given in public interest and that judgment was confirmed by the Supreme Court.
It is in this background of the special facts that the question of likelihood of bias arises in the present case. On the date of the meeting of the Joint Screening Committee on 30-8-1979, V was defending the appellant's writ appeal before the Division Bench. The plea of bias, although not raised during the inquiry proceedings, it is raised in the High Court, it is sufficient as it goes to the root of the question and is based on "admitted and uncontroverted facts" and does not require any further investigation of facts. Therefore, V should have "recused"
himself from the Committee. As he did not do so and participated in the decision making process and disqualified the appellant, the entire recommendations dated 30-8-1979 of the Screening Committee must be treated as vitiated and invalid. This defect is also not cured because of the remedy of an appeal. The recommendation of the Committee dated 30-8- 1979, the decision of the State Government dated 22-5-1980 accepting and sending the same to the Central Government, and the decision of the Central Government dated 7-8-1980 on appeal are all liable to be quashed in view of the legal position referred to above."
22. For the foregoing discussions, the respondent No.6 had every likelihood of bias and therefore, the recommendation of the Selection Committee in which the respondent No.6 is one of the members recommending the respondent No.8 for appointment to the post of Mission Director is invalid or illegal.
WP(C) NO.(SH)254/2012 Page 19 of 2023. In the result, the impugned order dated 28.08.2012 is called for interference. Accordingly, the impugned order dated 28.08.2012 is hereby quashed.
24. The writ petition is allowed.
25. No order as to costs.
JUDGE WP(C) NO.(SH)254/2012 Page 20 of 20