Orissa High Court
Dr. Priyaranjan Maral & Ors vs State Of Odisha And Ors. .... Opp. ... on 11 July, 2022
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.39640 of 2021
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Dr. Priyaranjan Maral & Ors. .... Petitioners
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioners : Mr. Saswat Das, Adv.
-versus-
For Opp. Parties : Mr. P.K. Mohanty, Sr. Adv.
(for OPSC)
Mr. M.K. Mishra, Sr. Adv.
(for O.P.8)
Mr. D.P. Nanda, Adv.
Mr. A. Acharya, Adv.
(for O.Ps.9 to 11
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-05.04.2022
DATE OF JUDGMENT:-11.07.2022
Dr. S.K. Panigrahi, J.
1. The petitioners have filed this writ petition challenging the entire process of selection conducted by the Odisha Public Service Commission for recruitment to the post of Assistant Professors in Psychology in different State Public Page 1 of 19 Universities under the administrative control of Higher Education Department.
2. The petitioners who had offered their candidature pursuant to an advertisement bearing no-08 0020-dated 08.02.2021 issued by the Odisha Public Service Commission (OPSC) for recruitment to the post of Assistant Professor in different State Public Universities of Odisha and were subsequently shortlisted for interview, in the present writ application seeks to challenge the notice bearing no-8881/PSC dated 06.12.2021 and letter/order bearing file no- HE-UE-POLICY- 0017 2020 51061/HE dated 14.12.2021 and the massive irregularity committed by the opposite party No-2 in the process of selection particularly by appointing two subject experts in the interview Board who are the Ph.D. guide of some candidates and also written some articles with some of the selected candidates who participated in the interview and selecting one candidate namely Monalika Rath who admittedly did not qualify for the interview and her candidature was rejected and reflected in the rejection list of the candidates. The petitioner calls in question the said action of the opposite parties as not only illegal and arbitrary but also contrary to the principles of fair play in the selection process inasmuch as the process is contrary to the statutory provisions governing the field. Page 2 of 19
3. The grievance of the petitioners is that although they were found eligible and called to appear in the interview but they fell victim in the hands of authorities as well as the expert bodies conducting the interview and selecting the candidates through favouritism and nepotism as a result of which the candidates who are less meritorious and belong to other reserved category made an in road into the select list. Therefore, the petitioners question the integrity and propriety of the persons conducting such interview to make a way for their research scholars to the select list. I. Facts of the case
4. In order to fill up large number of posts of Assistant Professor in different disciplines including the discipline of Psychology, an advertisement bearing Advt. No- 08 of 2020- 21 dated 08.02.2021 was issued by the Odisha Public Service Commission (OPSC in short)/ Opposite Party No-2 inviting applications from the intending eligible candidates to offer their candidature for the post lying vacant in different State Public Universities.
5. Pursuant to the aforesaid advertisement large number of candidates including the present petitioners who had fulfilled all the eligibility criteria as well as the educational qualifications prescribed in the advertisement conforming to the UGC Regulations, 2018 offered their candidatures. Thereafter, the OPSC verified the same and by virtue of the Page 3 of 19 notice bearing number 8124/PSC dated 09.11.2021 published the PPSAN number of the candidates whose candidatures were rejected on the ground noted in the column "reasons of rejection".
6. So far as the opposite party No-8 is concerned (Monalika Rath) is concerned, her PPSAN number 00093204" was published amongst the list of rejected candidates and the reason for such rejection was cited as "non-submission of certificates from Registrar/Dean" regarding Ph.D. On the very same day the OPSC by virtue of another notice bearing No-8120/PSC dated 09.11.2021 published the PPSAN of 44 number of candidates who qualified for the interview for recruitment to the post of Assistant Professor in Psychology.
7. Among the PPSAN of 44 number of candidates, the PPSAN of the petitioners' name were reflected in the notice dated 09.11.2021 and they were called to appear in the interview on the respective dates mentioned in the notice. Admittedly, the PPSAN of the candidates namely Monalika Rath (00093204) did not find place amongst the list of 44 candidates indicated in the notice bearing No- 8120 dated 09.11.2021. Pursuant to the notice dated 09.11.2021 issued by the OPSC, the petitioners along with other eligible candidates appeared in the interview on the respective dates and had full conviction to have performed well in the Page 4 of 19 interview vis a vis all other candidates. However, surprisingly a select list or the list of candidates recommended by the Commission for recruitment for the post of Assistant Professor Psychology was published by the OPSC vide Notice No- 8881/PSC dated 06.12.2021 wherein the name of Monalika Rath found place at serial number 4 and she was stated to have been selected under UR category although her name found place amongst the list of rejected candidates and although she was not called to the interview. II. Submission of the petitioners
8. Learned Counsel for the petitioners submits that the sole intent behind framing of the UGC Regulations, 2018 and the amendment brought to the Odisha Universities Act by virtue of the Odisha Universities Amended Act 2020 is to lay down a conducive platform for recruitment of the candidates through a robust process of selection by way of a fair and transparent manner free from any discrimination, bias, nepotism and favoritism. However, the above object was vanquished when the candidate namely Monalika Rath made an in road to the list of recommended candidates. Admittedly, when her candidature was rejected by the authorities by virtue of notice bearing No- 8124 dated 09.11.2021 and she was not called for the interview by virtue of notice bearing No-8120 dated 09.11.2021. The above Page 5 of 19 incident prima facie heralds an avalanche of faith erosional syndrome for the OPSC. It might be perceived to be a package of hoax, but the circumstances reaffirmed something else. It seems that the Odisha Public Service Commissions has given a scope to some back door entry method by recommending the names of the candidate who could not qualify for the interview. The mala fide intention of the Public Service Commission is apparent on the face of record. Therefore, the entire selection process was not conducted by the OPSC in a fair and transparent manner and it has failed to insulate itself from the perception of free from nepotism and favouritism. He further added that they have utmost faith in the fair selection of process conducted by the OPSC but in the present case, it seems to have been done in capsiculated manner.
9. He further submits that all through the selection process more particularly on the dates of interview except the Chairman, the 3 subject experts namely i) Dr. B. Rangaiah, Prof of Psychology, ii) Dr. Indramani Lal Singh, Prof of Psychology, iii) Dr. P.A Baby Shari, Prof of Psychology, University of Calicut and they interviewed all the qualified candidates on the respective dates. In this context, it is worthwhile to mention here that out of the 3 subject experts, the subject expert namely Dr. B Rangaiah and Dr. Indramani Page 6 of 19 Lal Singh were the Ph.D. guides of some candidates who appeared in the interview. Needless to mention that Dr B. Rangaiah, one of the subject experts, was the Ph.D guide of one selected candidate namely Sudarshan Behera having PPSAN number 00078103 and Shri Behera has written four research papers with Shri Rangaiah as co-author. Similarly, another selected candidate namely Prabhakar Duari is the Ph.D Scholar of Pondicherry University and he is the student of Shri B. Rangaiah. The candidate namely Priyanka Tiwari having PPSAN number 00093841 whose name finds place at serial number 1 in the list of recommended candidates completed her MA in Clinical Psychology from Benaras Hindu University and during her academic session she was the student of Prof. Dr. Indramani Lal Singh (subject expert). She has also published a book along with Dr. Indramani Lal Singh as co-author. The name of all the three candidates have been reflected in the Notice No 8881. This reflects that the interview process was rigged with bias and favouritism which is not at all a generally approved method of conducting selection.
10. Moreover, the law is well settled by this Court as well as the Hon'ble Apex Court that 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 Page 7 of 19 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 selections made would be vitiated on account of reasonable likelihood of bias affecting the process of selection. It is further well settled that 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, 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.
11. He additionally submits that the law is well settled by this Court as well as the Apex Court that it is one of the fundamental principles of jurisprudence that no man can be a Judge in his own cause and that if there is a reasonable likelihood of bias it is "in accordance with natural justice and common sense that the justice likely to be so biased, he Page 8 of 19 should be incapacitated from sitting". The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such in order to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision.
12. Therefore, the notice bearing no- 8881/PSC dated 06.12.2021 and letter/order bearing file no- HE-UE-POLICY-0017-2020 51061/HE dated 14.12.2021 and the entire selection process, much less the interview of recommended candidates is arbitrary in nature and contrary to the principle of natural justice and fair play.
III. Submissions on Behalf of the Opposite Parties
13. Learned counsel for the Opposite Parties submits that in this context, case of the opposite party no.8 becomes pertinent to elaborate. This candidate was awarded Ph.D degree in the year 2013 and had her PhD course registered before 2009. Thus, she was required to produce a certificate issued by competent authority of the University certifying than she fulfilled the requirements of having her Ph.D. degree as per UGC Regulation, 2009. On the day of her document verification (i.e. on 24.09.2021) she failed to produce the Page 9 of 19 above mentioned certificate. As such her Ph.D degree could not be accepted in absence of the testimonials and hence notified to be rejected.
14. As several such instances came to the notice of the Commission that rejection was merely based on technical grounds, the Commission took a conscious decision that a candidate can produce the wanting testimonials before the verification fixed for that particular subject. Accordingly, notice dated 30.09.2021 was given to the candidates in this regard in the OPSC website.
15. This candidate (O.P. No.8) produced the required certificate from the competent authority of the University within the specified date i.e. on 22.10.2021, last date fixed for verification of Psychology discipline. She was declared eligible by the verification board. With her academic score following additional weightage of Ph.D she was shortlisted for interview having secured a position within five times of the advertised vacancies. Validation of her candidature has been done with due diligence having regard to the scrutiny process as enjoined by the UGC Regulations.
16. He further submits that Opposite Party No. 6 & Opposite Party No. 7 both experts having academic association with Opposite Party No.9 and Opposite Party No. 11 respectively recused themselves in taking part in their interviews and Page 10 of 19 evaluation process (Opposite Party No 9 & Opposite Party No 11) as has been duly noted by the Chairman and academic representative of the Interview Board. Even for the sake of argument, if an expert has some sort of academic association with a candidate the former does not solely decide the outcome of interview in favour of that candidate because there are four other members including the Chairperson whose integrity fairness and objectivity are to be trusted.
Court's Analysis and Reasoning
17. The entire process of selection has given rise to some sort of apprehension and substantive negative perceptions. In the case of the opposite party No.8, which requires some elaboration. This candidate was awarded Ph.D degree in the year 2013 and had her PhD course registered before 2009. Thus, she was required to produce a certificate issued by competent authority of the University certifying that she fulfilled the requirements of having her Ph.D. degree as per UGC Regulation, 2009. On the day of her document verification (i.e. on 24.09.2021) she failed to produce the above mentioned certificate. As such her Ph.D degree could not be accepted in absence of the testimonials and hence notified to be rejected. This candidate (OP No.8) produced the required certificate from the competent authority of the Page 11 of 19 University within the specified date i.e. on 22.10.2021, last date fixed for verification of Psychology discipline is completely demonstrates a case of extra favouritism. There was no relaxation of time notice uploaded in the website for the knowledge of the other candidates nor was there any such quick communication mode established to intimate candidates to allow such testimonials in question even by extending some time concessions.
18. Further, the Opposite Party No.6 & Opposite Party No.7 both experts having academic association with Opposite Party No.9 and Opposite Party No. 11 respectively though demonstrated by the OPSC that they recused themselves in taking part in their interviews and evaluation process. It was further submitted that the recusal of Opposite Party No.9 & Opposite Party No.11 has been duly noted by the Chairman and academic representative of the Interview Board. This Court had the occasion to verify such recusal which is quite obscure which give rise to further suspicion. While inspecting the file produced by the Counsel for the OPSC , it was totally not clear as to what sort of recusal was followed since the sheet showed the name and signature of Opposite Party No.9 & Opposite Party No.11 in the attendance sheet. The Counsel for the OPSC failed to convince the court regarding the requirement of complete Page 12 of 19 recusal. Instead he pointed out that even for the sake of argument, if an expert has some sort of academic association with a candidate the former does not solely decide the outcome of interview in favour of that candidate because there are four other members including the Chairperson whose integrity fairness and objectivity are to be trusted. This Court has always reposed utmost faith on the recruitment process of the OPSC but the present case depicts an aberration.
19. Law dictates that no man can be a Judge in his own cause and that if there is a reasonable likelihood of bias it is "in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. Page 13 of 19
20. Hon'ble Supreme Court explained 'likelihood of bias' in the case of Ashok Kumar Yadav vs State Of Haryana And Ors.1 where it was held that:
"It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare state where the jurisdiction of administrative bodies in increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner. This was the basis on which the applicability of this rule was extended to the decision-making process of a selection committee constituted for selecting officers to the Indian Forests Service in A.K. Kraipak v. Union of India2 happened in this case was that one Naquisbund, the acting Chief Conservator of Forests, Jammu and Kashmir was a member of the Selection Board which had been set up to select officers to the Indian Forest Service from those serving in the Forest Department of Jammu and Kashmir. Naquisbund who was a member of the Selection Board was also one of the candidates for 1 1987 AIR 454 2 (1969) 2 SCC 262 Page 14 of 19 selection to the Indian Forest Service. He did not sit on the Selection Board at the time when his name was considered for selection but he did sit on the Selection Board and participated in the deliberations when the names of his rival officers were considered for selection and took part in the deliberations of the Selection Board while preparing the list of the selected candidates in order of preference. This Court held that the presence of Naquishbund vitiated the selection on the ground that there was reasonable likelihood of bias affecting the process of selection."
21. The Supreme Court has time and again emphasized that it was not necessary to establish bias but it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias. The likelihood of bias may arise on account of proprietary interest or on account of personal reasons, such as, hostility to one party or persona! friendship or family relationship with the other. Where reasonable likelihood of bias is alleged on the ground of relationship, the question would always be as to how close be the degree of relationship or in other words, is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection.
22. Learned Counsel for the opposite parties have put forth the argument of doctrine of necessity contending that it may sometimes happen that no other member is available to take Page 15 of 19 the place of such member and the functioning of the Public Service Commission may be affected. However, this exception shall not be applicable in the present case as an alternative as legally permissible. In Badrinath v. Government of Tamil Nadu and Ors. J.T.3 of the decision Hon'ble Apex Court has held that unless there is a statute or statutory rule compelling the person to take a decision and there is no legally permissible alternative to substitute the adjudicator by another adjudicator, the doctrine of necessity cannot be pressed into service. For ready reference important paragraph of the decision is reproduced as under:
"83. It may be noticed that where a statute or a statutory rule constitutes a designated authority to take administrative or quasi-judicial decisions and where the person concerned is disqualified to take a decision on the principle of likelihood of bias, then the law (in certain circumstances explained below) makes an exception in the situation and the said person is entitled to take a decision notwithstanding his disqualification for otherwise no decision can he taken by anybody on the issue and public interest will suffer. But the position in the present case is that there is no statute or statutory rule compelling the Chief Secretary to be a member of the Screening Committee. If the Committee is constituted under an administrative order and a member is disqualified in a given situation vis-a-vis a particular candidate whose 3 2000 (Suppl. 1) SC 346 Page 16 of 19 promotion is in question, there can be no difficulty in his 'recusing' himself and requesting another senior officer to be substituted in his place in the Committee, Alternatively, when there are three members in the Committee, the disqualified member could leave it to the other two - to take a decision. In case, however, they differ, then the authority, which constituted the Committee, could he requested to nominate a third member. These principles are well settled and we shall refer to them."
23. The question that confronted by this Court in the above facts is whether the participation of Dr. B. Rangaiah and Dr. Indramani Lal Singh in the selection process vitiates the entire of the proceeding on the ground of bias. The doctrine of bias is a unique judicial innovation consistent with the principle that the justice delivery system must be rooted in the confidence of the people and justice must not only be done but also appear to have been done. Proof of actual bias is difficult to come by. Hence the Courts have consistently held that even the possibility of bias would suffice to nullify an order passed or an action taken. In the present case, the possibility of bias on the part of Dr. B. Rangaiah and Dr. Indramani Lal Singh as against the other candidates in the fray and leaning in favour of the candidates having a direct nexus with them, loans large.
Page 17 of 19
24. The Supreme Court in the case of PK Ghosh v. JG Rajput4 observed here as under-
"A basic postulate of the rule of law is that "justice should not only be done but it must also be seen to be done". If there be a basis which cannot be treated as unreasonable for a litigant to expect that his matter should not be heard by a particular Judge and there is no compelling necessity, such as the absence of an alternative, it is appropriate that the learned Judge should recuse himself from the Bench hearing that matter.
This step is required to be taken by the learned Judge not because he is likely to be influenced in any manner in doing justice in the cause, but because his hearing the matter is likely to give rise to a reasonable apprehension in the mind of the litigant that the mind of the learned Judge -- maybe subconsciously -- has been influenced by some extraneous factor in making the decision, particularly if it happens to be in favour of the opposite party.
Credibility in the functioning of the justice delivery system and the reasonable perception of the affected parties are relevant considerations to ensure the continuance of public confidence in the credibility and impartiality of the judiciary. This is necessary not only for doing justice but also for ensuring that justice is seen to be done."
25. Consequently, this Court finds merit in the plea of the petitioner that there were reasonable grounds for an 4 1995 SCC (6) 744.
Page 18 of 19apprehension that the selection of candidates was vitiated by bias. The Writ Petition is thus allowed. However, while allowing this Writ Petition, this Court makes it clear that nothing stated in this judgment is meant to cast any reflection whatsoever on the eminence, credentials and achievements of Opposite Party No.8 and other candidates. This Court also held the OPSC and the experts invited for the interview in high esteem and this may be treated as a stand-alone aberration without any iota of erosion of this Court's faith in their efficiency and integrity. It will be open to the appointing authority to appoint a fresh Selection Committee through OPSC for the purpose of recruitment for the post of Assistant Professor of Psychology in order to allay any kind of apprehension in the minds of the candidates.
26. Accordingly, this Writ Petition is disposed of.
(Dr. S.K. Panigrahi ) Judge Orissa High Court, Cuttack, Dated the 11th of July, 2022/B. Jhankar Page 19 of 19