Andhra Pradesh High Court - Amravati
2 vs Sanjay Jethi And Another on 13 July, 2023
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
WRIT PETITION Nos.45114 of 2018 & 841 of 2020
COMMON ORDER:
Both these writ petitions are being taken up together as the facts in both these cases are inter connected and counsel on all sides had consented for both the matters to be taken up together.
2. Heard Smt. K. Sesha Rajyam, the learned Senior Counsel appearing for Smt. Hima Bindu, learned counsel for the petitioner in W.P.No.841 of 2020 (father of respondent No.5 in W.P.No.45114 of 2018) and for respondent No.5 in W.P.No.45114 of 2018, Sri R. Gopala Krishna learned counsel for the petitioner in W.P.No.45114 of 2018 and the learned Deputy Solicitor General for the official respondents.
3. Both these cases relate to selection of candidates for participation in higher level camps and competitions conducted by the National Cadet Corps (hereinafter referred to as NCC). The apex body for the NCC in the States of Andhra Pradesh and Telangana is the NCC Directorate (AP&T). This Directorate has seven Naval NCC Units, apart from Army and Air Force Units. There are six Naval Units in Andhra Pradesh and one Naval Unit in Telangana. This Directorate sends selected candidates for 2 higher level camps and competitions namely AINSC, All India Yachting Regatta and Republic Day Camp. One of the teams sent for these camps/competitions is a ship modeling team. The controversy in both these writ petitions relate to the selection of cadets, for ship modeling, in the Republic Day Camp that was held on January 2019.
4. The facts relating to W.P.No.45114 of 2018 are as follows:
According to the writ petitioner, she was a cadet in 6(A) Naval Unit NCC, Kakinada. She had participated in a selection process conducted in a camp known as "Combined Annual Training Camp VII" held at Narasapur from 20.07.2018 to 29.07.2018 wherein she was awarded a gold medal and was selected for further participation in inter group competition of NSC 2018 which was held at Visakhapatnam from 30.08.2018 to 08.09.2018. Her team got second place in the said competition in relation to ship modeling. Thereafter, she was sent as one of the probables to the next level camp which was the PRE RDC-1, 2018 held at Bison Training Ground, Secunderabad from 27.11.2018 to 05.12.2018. The petitioner contends that, in the Pre RDC camp in Secunderabad, she was adjudged to be the best cadet in Ship Modeling and was selected as part of the ship modeling team which would participate in the 3 Republic Day Camp 2019 at New Delhi. The petitioner contends that her physical measurements were also taken for the purposes of kitting her with necessary uniform and paraphernalia. At that stage, the petitioner is said to have been approached with offers of money and gifts to drop out of the selection process so that 5th respondent herein Ms. Vishnu Chandrika, the daughter of the Petitioner in W.P.841 of 2020, who was an NCC Officer could be accommodated. This attempt is said to have been made so that the 5th respondent could participate in the Republic Day Camp and such participation would enable her to get a seat in a medical college for MBBS Degree. The petitioner contends that she refused such offers. It may also be noted that the Petitioner was also looking at joining MBBS.
5. The petitioner has approached this Court on the ground that the final results released on 06.12.2018 did not include her name in the list of selected candidates and Ms. Vishnu Chandrika who had actually secured the lowest marks in the evaluation made by the Board of Officers had been included and the same is clearly arbitrary and had been done by excluding her from the list of selected candidates and the same is clearly violative of her rights. It may also be recorded that this writ petition was filed in December 2018 and during the 4 pendency of the writ petition, Ms. Vishnu Chandrika, the 5th respondent herein, had participated in the Republic Day camp 2019 and, on the strength of this participation, had obtained admission into the MBBS course offered by a Government college at Vijayawada.
6. A counter affidavit was filed on behalf of respondents 3 and 4 and the same was signed by Commander N.N.Reddy who was the then Deputy Director General, heading the office of the NCC Directorate of AP&T.
7. The case set out in the counter affidavit is that a team of 3 cadets was to be sent to the Republic Day Camp, for ship modelling. This team was to have at least one member from the Senior Wing, which is for women only. The selection of cadets, who would participate in the Republic Day parade in January, 2019, was completed in Visakhapatnam itself and a list of four names, including the name of Ms. Vishnu Chandrika, had been forwarded to the Directorate on 10.09.2018 itself. It is stated that though a team of three cadets is sent, to the Republic Day Camp 2019, at New Delhi, for ship modeling, four names were sent with three cadets being named as main cadets and one cadet named as a reserve cadet to be kept on standby in the event of any of the main candidates not being able to 5 participate in the camp. The counter states that the writ petitioner was not included in the initial list of four names. However, it was thought fit by the Directorate to have a larger number of reserve cadets and the same was intimated on 01.10.2018 to the Board of Officers of the NCC group which had conducted the selection process and consequently a list of six names, including the name of the writ petitioner, was sent to the Directorate. The counter states that the writ petitioner was only called as a reserve cadet who was also to train along with the main selected candidates. That such participation in the camp at Secunderabad would not in any manner entitle the petitioner to participate in the Republic Day camp of 2019 and the entire writ petition is baseless.
8. The facts giving rise to writ petition No.841 of 2020 are as follows:
The father of the 5th respondent in W.P.No.841 of 2020 was the officer commanding 1(A), EME in NCC located at Vijayawada from 2016 to 2019. He has approached this Court being aggrieved, initially, by the convening order dated 21.08.2019 issued by the Director General, NCC for conducting a Court of Inquiry into the allegation against the writ petitioner relating to his interference in the selection process of cadets in 6 order to ensure that his daughter was selected for participation in Republic Day Camp 2019 as a member of the ship modeling team. Subsequently, the respondents had filed a counter affidavit stating that the proceedings of the Court of Inquiry had been completed and the 2nd respondent had already made his recommendations on the said findings by his proceedings dated 13.12.2020. Thereupon, an application was filed to amend the prayer in the writ petition and the same was allowed. By virtue of this order, the scope of the writ petition was expanded to challenge both the convening order as well as the recommendation/directions in proceedings dated 13.12.2020 in File No.20627/AP&T/317/NCCH2/MS(EV).
9. The case of the petitioner is that the proceedings of the Court of Inquiry were totally one sided, biased against the petitioner and conducted with a clear pre disposition to accept the allegations made against the petitioner. In support of these contentions the petitioner has also placed certain complaints made by the witnesses who were examined in the said Court of Inquiry stating that they were not permitted to answer properly and that they were treated in an entirely disrespectful manner and threatened with dire consequences if they do not go along with the Court of Inquiry and support the conclusions that the Court of Inquiry wanted to draw.
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10. The documents filed along with the counter affidavit filed by the respondents included the findings of the Court of Inquiry and the recommendations dated 13.12.2019 made by the 2nd respondent and which are under challenge before this Court. In these recommendations, the 2nd respondent had recommended disciplinary action to be initiated against some of the officers involved, including the writ petitioner.
11. The official respondents took the stand, in the counter affidavit in W.P. No. 841 of 2020, that the process for selecting cadets for the ship modeling team for the Republic Day Camp 2019 was to be done in two stages. Firstly, a list of probables was to be drawn up in the camp held at Visakhapatnam and the final selection was to be done at Secunderabad. The counter affidavit reiterates the findings of the Court of Inquiry that the petitioner had interfered in the selection process and had ensured that his daughter was selected even though the writ petitioner in W.P.No.45114 of 2018 should have been selected. The counter affidavit also denied the allegations, of misconduct in the proceedings of the court of inquiry, made in the writ petition as well as the allegations made in the communications which have been placed before this Court along with the writ petition. 8
12. As can be seen from the above, the official respondents took the stand in W.P.No.45114 of 2018, that the selection process was completed at Visakhapatnam and there was no further selection to be carried out in Secunderabad. The respondents, in W.P.No.841 of 2020 took a diametrically opposite stand and contended that the selection process was a two step process terminating in final selection being conducted in Secunderabad. In view of this apparent contradiction, this Court had directed that an officer, senior to the deponents of the counter affidavits in both cases, should file an affidavit setting out the actual process. However, the affidavit filed in compliance with this direction is reticent on the facts and the processes involved. In that view of the matter, this Court also directed the learned Deputy Solicitor General to place the record of the Court of Inquiry. In view of the lack of assistance from the official respondents, this Court had to go through all the documents and proceedings of the Court of Inquiry which run into a few hundred pages.
13. The facts that could be deemed from a perusal of the record and documents placed before this Court run as follows:
A camp was held for shipping model team, at the unit level, at Narasapur between 20th July to 29th July by 7(A) Naval Unit. Cadets of 6, 7 and 8 Andhra Naval Units forming the 9 Kakinada Group participated in this camp. Both the writ petitioner in W.P.No.45114 of 2018 (Sri Divya) belonging to 6(A) Naval Unit NCC and the 5th respondent (M.Vishnu Chandrika) representing 8(A) Naval Unit NCC had participated in this camp. The petitioner in W.P.No.841 of 2020 was appointed as the officer to carry out quarterly audit of the 7(A) Naval Unit NCC for the quarter ending June 2018 and was present during the conduct of the camp at Narasapuram, ostensibly for the purposes of conducting the quarterly audit of the accounts. Thereafter, both Ms. Sri Divya and M.Vishnu Chandrika were sent to the next camp i.e., NSC-IGC 2018 held, at Visakhapatnam, between 30.08.2018 to 08.09.2018 by 3(A) Naval Unit NCC for the purposes of selection of the cadets who will participate in three National Level Camps/Competitions namely AINSC 2018, All India Yachting Regatta 2018 and Republic Day Camp, 2019. The selection of cadets was in relation to various teams including ship modeling team. The Commanding Officer of 3(A) Naval Unit NCC was also the Camp Commandant in the NSC-IGC 2018. The writ petitioner in W.P.No.841 of 2020 was again appointed as Auditor/Independent Observer in relation to the conduct of camps by 3(A) Naval NCC and he was present during the conduct of the camp at Visakhapatnam between 30 th August to 10 8th September, 2018. The selection of cadets, according to the procedure followed in the NCC was that a Board of Officers is constituted for the purposes of selecting the cadets for higher level camps after evaluating their performance, on specified parameters, for such selection. In the present case, the Board of Officers who conducted such selection, at Visakhapatnam, consisted of Captain (IN) Ravi Kumar Bontha, Captain G.V.Ugandhar Reddy who was the Commanding Officer of 10(A) NC NCC and Lt. Colonel S.K.Sundaram who was the Training Officer of NCC Group Visakhapatnam. This Board of Officers, after evaluating the performance of the cadets in relation to the ship modeling team had forwarded the names of four cadets to the NCC Directorate Andhra Pradesh and Telangana by a letter dated 10.09.2018. Ms.M.Vishu Chandraika was one of the selected cadets and the name of Ms.Sri Divya was not included. Subsequently, the NCC Directorate Andhra Pradesh and Telangana by a letter dated 01.10.2018 had directed that a list of six names would have to be sent. Accordingly, a fresh list of six names including the name of Ms.Sri Divya was sent on 18.10.2018.
14. The aforesaid six candidates were called to the next camp which was the PRE RDC-1 camp held at Secunderabad between 27.11.2018 to 05.12.2018. The petitioner in 11 W.P.No.841 of 2020, who was stationed in Vijayawada, took leave and was present during the camp between 27th November to 05th December, 2018. In this camp, a fresh Board of Officers consisting of Commander G.Bindu Kumar, Mr.Y.Bhuvaneswar Babu and Sri M.Yagneshwar had evaluated the six candidates and awarded marks to the said candidates. The marks sheet of this Board of Officers placed before this Court, shows that Ms. Sri Divya was placed first in terms of performance among the six cadets and Ms. M. Vishnu Chandrika was placed last.
15. However, when the final list of selected candidates was released, it is found that Ms. M. Vishnu Chandra is one of the three selected cadets while Ms. Sri Divya who had obtained the highest marks did not find a place in the list of selected candidates. The reason for such exclusion, given in the counter affidavit filed in W.P.No.45114 of 2018 is that, the selection of cadets had already been completed in Visakhapatnam and there could not have been a 2nd selection in Secunderabad by another Board of Officers. In any event there was no authorization for convening a second board of officers at Secunderabad and the NCC Directorate Andhra Pradesh and Telangana had set aside the recommendations of the Board of Officer released on 06.12.2018 and consequently the original list 12 prepared at Visakhapatnam was forwarded as the list of selected candidates.
16. The issues that would arise for consideration by this Court, in this regard are; 1) whether the selection process was completed in the Visakhapatnam Camp and the further selection in Secunderabad was redundant and not authorized; and 2) whether the petitioner in W.P.No.841 of 2020, who is the father of Ms.M.Vishnu Chandrika, had misused his position and interfered in the selection process so as to ensure that his daughter is selected even though she was ranked below Ms. Sri Divya.
17. As observed earlier, contradictory stands were taken by the NCC authorities in W.P.No.5114 of 2018 and W.P.No.841 of 2020. This required this Court to go through the documents to ascertain whether the selection process continues after the camp at Visakhapatnam or not.
18. The method of selection was to be done in accordance with the SOP issued in July 2017. The said SOP has been placed before this Court at page No.4 of the counter affidavit filed by the 2nd respondent in W.P.No.45114 of 2018 on 10.10.2022. The relevant provisions of the said SOP are as follows:
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Aims: the aims of the NSC-IGC are to be as follows:
(a) .............
(b) .............
(c) ............
(d) ............
(e) .............
(f) To select:-
(i) 40xSD and 20xSW cadets as "probables" for AINSC.
(ii) 20xSW cadets as "probables" for ATC(SW) Ezhimala.
(iii) 5xSD cadets and 5xSW cadets as "probables" for Chilka Sailing Competition.
(iv) 3xSD/SW cadets as "probables" for Ship-Modeling Competition during RDC.
Selection for Other Camps:
(a) Cadets from amongst those attending the NSC-IGC will be selected for other camps as follows:
(i)........
(ii).........
(iii)........
(iv) 3xSD/SW cadets as "probables" for Ship-Modeling Competition for RDC.
The next document of relevance is the letter of NCC Directorate of AP&T dated 01.10.2018 which is placed before 14 this Court at page No.95 of the reply filed by the writ petitioner, on 26.1.2.2018 in W.P.No.45114 of 2018. It reads is as follows.
PROBABLES FOR AINSC-2018
1. Refer:-
(a) AJIs for IGC NSC dt 25 Jul 2018.
(b) Your letter No.VSP/229/NSC/Trg dt 10 sep 2018.
2. As per AJIs for IGC NSC issued vide this Dte email dt 20 Aug 2018 under ref para 2(b)(ii) and (iii), it is clearly mentioned that only "Probables" for Sailing Regatta as well as Ship Modelers for PRE-RDC are required to be identified and shortlisted. However, against five vacancies allotted for Sailing Regatta each for SD and SW, BOO shortlisted six SD and SW Cadets, keeping adequate Reserve duly approved by this Dte wherein against four SD/SW cadets for Ship modeling of IC RDC, no addl Cadets were shortlisted, thus leaving no room for depth in selection and also giving rise to unavoidable doubts in transparency and fairness in selection of shortlisted probables.
3. In addn the BOO convened vide order No.VSP/2291/19/NSC IGC/Trg dt 23 Aug 2018 was to shortlist "Probables" and not for the final selection of the cadets for Sailing Regaatta and Ship Modellers for PRE RDC. As indicated in BOO submitted by your Gp HQ there is a deviation from established norms and set out objectives which is likely to lead to lack of depth in selection.
4. In view of the above, you are requested to reexamine the BOO strictly as per the instrs issued vide AJIs issued and adhere to the fwg instrs:-
(a) No cadet will be indicated as selected cadet or Reserve cadet. All cadets are to be shortlisted as only "probables". 15
(b) Adequate reserves in ship modelers for RDC-2019 i.e., six cadets (including 01xS1) and 01xSW cadets) to be shortlisted and nominated as PROBABLES for PRE RDC-19.
5. You are also requested to submit the results of all cadets who have participated in IGC NSC.
6. For strict compliance pl.
19. The Board of Officers, at Visakhapatnam, had sent a list of four cadets on 10.09.2018 to the NCC Directorate. On 01.10.2018 the NCC Directorate had replied and called upon the said Board Officer to send six names as the final selection would be done at the PRE RDC camp at Secunderabad and the selection at Visakhapatnam cannot be final. In reply to this missive, Lt. Colonel S.K.Sundaram by a letter dated 25.10.2018 forwarded a list of six cadets.
20. This communication makes it clear that the selection at Visakhapatnam was not the final selection and the selection process at Visakhapatnam was only to narrow down the probables who would be finally selected at Secunderabad. This view was clearly expressed by the NCC Directorate in its letter on 01.10.2018. The reply dated 25.10.2018, to the letter of 01.10.2018, does not in any manner raise any objection to this view and a list of six names was sent without any further demur. 16 This letter itself says that a list of probables of ship modeling cadets selected during the Visakhapatnam camp was being forwarded. In the circumstances, the stand of the official respondents in W.P.No.45114 of 2018 that the selection process had been completed in Visakhapatnam itself is not correct and has to be rejected.
21. The selection process in Secunderabad is disputed on two grounds. Firstly, Captain (IN) D. Srinivas did not have the authority to convene a Board of Officers and secondly, the order, dated 27.11.2018, signed by captain (IN) D. Srinivas for convening the Board of Officers at Secunderabad, is invalid as Captain (IN) D. Srinivas was on leave on that day and could not have signed the said order on that day and this order has been back dated.
22. It is seen that Captain (IN) D. Srinivas was the Naval Officer in charge of the entire process in the Hyderabad camp and clearly had the authority to constitute the Board of Officers for evaluation of the cadets. It would also have to be taken into account that cadets relating to various disciplines and teams, apart from ship modeling, had also been selected in the Hyderabad camp which clearly shows that the constitution of Board of Officers cannot be faulted.
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23. Captain (IN) D. Srinivas was cross examined in the course of the proceedings of the Court of Inquiry where this issue was raised. Captain (IN) D. Srinivas stated that even though he was on leave, he was available in Secunderabad during the said period and had signed the proceedings to constitute the Board of Officers and had handed over the said proceedings in Secunderabad itself. Nothing has been placed before this Court or the Court of Inquiry to disbelieve this version of Captain (IN) D. Srinivas. The proceedings of the Board of Officers, dated 6.12.2018, at Secunderabad, are said to have been set aside by the NCC Directorate (AP &T). However, these proceedings were never placed before this court. In any event, the said proceedings, if any, are clearly misplaced and cannot be taken into account.
24. It was Ms. Sri Divya who was selected at Secunderabad and not Ms. Vishnu Chandrika. In view of the finding of this Court, that the selection process was not completed in Visakhapatnam and was completed in Secunderabad, the selection of Ms. Vishnu Chandrika, for participating in the Republic Day Camp 2019, as a member of the ship modelling team, has to be set aside. It has to be declared that Ms. Sri Divya, the Petitioner in W.P.No. 45114 of 2018, was entitled to participate in the Republic Day Camp 2019 and 18 consequently would have been entitled to admission in the MBBS course in the place of Ms. Vishnu Chandrika. She has been unfairly deprived of a medical seat.
25. The 2nd issue of whether the petitioner in W.P.No.841 of 2020 had interfered in the selection process need not be gone into for the purpose of this writ petition. However, that issue is being considered for the purpose of W.P.No.841 of 2020.
26. The challenge to the proceedings of the Court of Inquiry and the subsequent recommendations made by the 2 nd respondent remains, in W.P.No. 841 of 2020.
27. The allegation against the petitioner in W.P.No.841 of 2020 is that he had misused his position as an officer in the NCC and his position as the officer detailed to conduct audit of the camp at Narasapur and the camp at Visakhapatnam to pressurize the concerned officers to select his daughter instead of Ms. Sri Divya who was more qualified and a better cadet in terms of ship modeling.
28. The complaint against the writ petitioner in W.P.No.841 of 2020 came from two quarters. Firstly, Commander G.Bindu Kumar who was present during the selection process in the camp at Visakhapatnam and the camp at Hyderabad is said 19 to have raised his objections regarding the role of the writ petitioner in W.P.No.841 of 2020 in the selection process. This complaint is said to have been raised by Commander G.Bindu Kumar in the month of September, 2018 and subsequently in December, 2018 after the list of selected candidates was released in December, 2018. The complaint of Commander G.Bindu Kumar was on two grounds. Firstly, on the ground that the conduct of the petitioner in W.P.No.841 of 2020 at the camp in Visakhapatnam and the camp in Hyderabad clearly showed that he had pressurized the concerned authorities into selecting his daughter above Ms.Sri Divya. Secondly, Commander G.Bindu Kumar who had seen the performance of both Ms.Sri Divya and Ms. M.Vishnu Chandrika, in the camp at Secunderabad, rated Ms.Sri Divya above Ms. M.Vishnu Chandrika and was surprised that Ms.Sri Divya was deleted from the list of selected cadets and the name of Ms.M.Vishnu Chandrika was added despite the fact that Ms. Sri Divya had been awarded much higher marks over Ms. M.Vishnu Chandrika.
29. The second complaint originated from Ms. Sri Divya by way of a representation as well as the filing of W.P.No.45114 of 2018. The allegations made by her are that she had performed better than Ms. M. Vishnu Chandrika at the camp in Narasapuram, at the camp in Visakhapatnam and the camp in 20 Secunderabad and the selection of Ms. M.Vishnu Chandrika without considering her case clearly showed that the entire selection process was biased, manipulated and arbitrary and should not have been allowed.
30. In view of the complaints raised by these two persons, a Court of Inquiry had been convened to go into these issues. At that stage, the officers concerned appear to have divided themselves into two opposition camps. The officers who contend that Ms. M.Vishnu Chandrika had been selected properly stand on one side while the officers who contend that her selection was wrong are on the other side.
31. The grievance in W.P.No.841 of 2020 is that the manner in which the said proceedings had been undertaken does not inspire any confidence about the impartiality of the said inquiry and that manner in which some of the officers have been dealt with by the Court of inquiry clearly makes out a case for stopping all further proceedings in the said Court of inquiry and for setting aside the findings of the said Court of inquiry as well as the recommendations made by the 2nd respondent on the basis of such findings of the Court of inquiry. In support of these allegations, the representations given by Smt. M.V.R. Bharathi, the wife of the petitioner in W.P.No.841 of 2020, Captain Ravi 21 Kumar Bontha who was the commanding officer of 3(A) Naval Unit and had conducted the camp at Visakhapatnam, Colonel M.V.R.Murali Krishna who was the Ex-Director of NCC Directorate (AP&T), Colonel LCS. Naidu Group Commander, NCC Coimbatore who was earlier Group Commander for Kakinada Group and the complaints of Captain G.V.Ugandhar Reddy, Captain (IN) Ravi Kumar Bontha detailing the manner in which they were not allowed to set out their statements and manner in which the Court of enquiry has been conducted, have been pressed into service.
32. Smt. K. Sesharajyam, the learned senior counsel, relying upon the judgment of the Hon'ble Supreme Court in Union of India And Others Vs. Sanjay Jethi and Another1, contends that a reasonable apprehension of bias, by the officer under enquiry would be sufficient to set aside the proceedings and findings of the Court of Inquiry. She would also submit that the complaints raised by various persons, mentioned above is sufficient to show that there is a clear bias against the petitioner and in any event a case of reasonable apprehension of bias is made out.
1 (2013) 16 SCC 116 22
33. The Hon'ble Supreme Court, in the aforesaid judgment was considering the complaint of bias made against a court of Inquiry and had laid down certain principles regarding how such allegations of bias would have to be dealt with.
"The fundamental principles of natural justice are ingrained in the decision-making process to prevent miscarriage of justice. It is applicable to administrative enquiries and administrative proceedings as has been held in A.K. Kraipak v. Union of India 2. It is also fundamental facet of principle of natural justice that in the case of quasi-judicial proceeding the authority empowered to decide a dispute between the contesting parties has to be free from bias. When free from bias is mentioned, it means there should be absence of conscious or unconscious prejudice to either of the parties and the said principle has been laid down in Gullapalli Nageswara Rao v. APSRTC 3, Gullapalli Nageswararao v. State of A.P. 4and G. Sarana v. University of Lucknow [G. Sarana v. University of Lucknow] . 5 In Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant 6, the Court referred to a passage from the view expressed by Mathew, J. in S. Parthasarathi v. State of A.P.7: (Girja Shankar Pant case [Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (supra 6)( (2001) 1 SCC 182 : 2001 SCC (L&S) 189] , SCC pp. 198- 99, para 28) "28. ... „16. The tests of "real likelihood" and "reasonable suspicion" are really inconsistent with each other. 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 2 (1969) 2 SCC 262 3 AIR 1959 SC 308 4 AIR 1959 SC 1376 5 (1976) 3 SCC 585 : 1976 SCC (L&S) 474 6 (2001) 1 SCC 182 : 2001 SCC (L&S) 189 7 (1974) 3 SCC 459 : 1973 SCC (L&S) 580 23 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 inquiry;
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. 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 [see per Lord Denning, M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [(1969) 1 QB 577 :
(1968) 3 WLR 694 : (1968) 3 All ER 304 (CA)] (WLR at p. 707].‟ (SCC p. 465, para 16)"
The principle that can be culled out from the number of authorities fundamentally is that the question of bias would arise depending on the facts and circumstances of the case. It cannot be an imaginary one or come into existence by an individual's perception based on figment of imagination. While dealing with the plea of bias advanced by the delinquent officer or an accused a court or tribunal is required to adopt a rational approach keeping in view the basic concept of legitimacy of interdiction in such matters, for the challenge of bias, when sustained, makes the whole proceeding or order a nullity, the same being coram non judice. One has to keep oneself alive to the relevant aspects while accepting the plea of bias. It is to be kept in mind that what is relevant is actually the reasonableness of the apprehension in this regard in the mind of such a party or an impression would go that the decision is dented and affected by bias. To adjudge the attractability of plea of bias a tribunal or a court is required to adopt a deliberative and logical thinking based on the acceptable touchstone and parameters for testing such a plea and not to be guided or moved by emotions or for that matter by one's individual perception or misguided intuition.24
34. The scope of enquiry, in this writ petition, is restricted to whether the proceedings of the Court of Inquiry have been conducted fairly and in accordance with laid down procedures and whether there is any material to conclude that the chairman and the members of the Court of Inquiry had exhibited bias, which requires the proceedings to be set aside.
35. The complaint of Smt. M.V.R.Bharathi, the wife of the petitioner in W.P.No.841 of 2020 is that Captain (IN) D.Srinivas has convened an unauthorized and illegal board to push out her daughter from the list of selected candidates and that he was harassing her family and husband and was also influencing the entire enquiry against them. This complaint is against another officer and witness and the said complaint does not in any manner make out a case against the court of Inquiry.
36. The complaint of Captain (IN) Ravi Kumar Bontha, made on 17.11.2019, was that the presiding officer of the Court of Inquiry had threatened to stop his retirement benefits/pension and had also confiscated his cell phone and kept it aside about 5 hours. This complaint does not set out anywhere as to why the presiding officer of the Court of Inquiry had threatened Captain Ravi Kumar Bontha and as to whether Captain Ravi Kumar Bontha was directed by the presiding office of the Court of 25 Inquiry to make any statement in any particular manner. There is no averment that the Court of Inquiry, by these methods had made Captain Ravi Kumar Bontha, depos falsely or that he stopped from setting out the facts as known to him. In the absence of these details, no cognizance can be taken of this complaint.
37. The representation of Colonel M.V.R.Murali Krishna was that his additional statement was not accepted and he was denied permission to cross examine Caption (IN) D.Srinivas. The additional affidavit is said to relate to facts that occurred on 25.07.2019 and certain facts which had occurred in November, 2019. The Court of enquiry is said to have refused to accept the said additional statement and had also refused permission to cross examine Captain (IN) D.Srinivas and such refusal is clearly not in accordance with Rule 180 which requires an officer under enquiry to be given every opportunity to cross examine witnesses making statements against them. The additional statement is placed before this Court. The additional statement sought to be given by Colonel MVR.Murali Krishna was that Captain (IN) D.Srinvas is said to have told Colonel MVR.Murali Krishna on 25.07.2019 that he had gained both health and wealth. The second statement was that Captain (IN) D.Srinivas was spreading the word that the petitioner in W.P.No.841 of 2020 was going 26 around and informing everybody that he had paid an amount of Rs.20 to 25 lakhs to select his daughter for Republic Day camp 2019 and the same would amount to defamation. Neither of the said statements have any relevance for ascertaining whether the petitioner in W.P.No.841 of 2020 had interfered in the selection process conducted in August to September, 2018 and December, 2018. No grievance really is made out on this basis.
38. The complaint of Colonel LCS. Naidu who was Group Commander NCC, Kakinada Group was that his examination conducted on 5 occasions on 9th November, 10th November, 15th November, 17th November and 18th November had been done under un due pressure being put by the presiding officer and his evidence was recorded in a biased way by selective questioning and interrupting him while he was answering in a very hurtful manner even though his deposition had no relevance to the whole case as he had no role in the selection of the ship modeling team.
39. Colonel LCS.Naidu was brought into this issue because he was the officer who had assigned audit duties to the petitioner, in W.P.No.841 of 2020, for the camps conducted at Narasapur and Visakhapatnam and the questions that came to be put to Colonel LCS.Naidu were on the manner in which the 27 petitioner in W.P.No.841 of 2020 was detailed as the officer to conduct audit. The question and answers posed to Colonel LCS.Naidu during the above period is contained in the proceedings of the Court of Inquiry which had been placed before this Court. A perusal of the said cross examination would show that the questions were basically related to the issue of why the petitioner, in W.P.No.841 of 2020, was being selected as the officer to conduct the said audits and whether detailing the same officer for two such camps was in the regular course or not. The evidence of Colonel LCS. Naidu does not really impinge upon the main issue of whether the petitioner in W.P.No.841 of 2020 was instrumental in ensuring the selection of his daughter. However, the evidence is relevant only to the extent of looking into the question of whether the appointment of the petitioner in W.P.No.841 of 2020 was in the regular course or was done to help him to pressurize the concerned officers into selecting his daughter. It is not clear as to what were the selective questions put to this witness or how treating him rudely would throw any light on the role of the petitioner in W.P.No. 841 of 2020.
40. The complaint of Captain (IN) G.S.Ugandhar Reddy is that both he and Captain (IN) Ravi Kumar Bontha were threatened by the presiding officer and members as they were not toeing the line that the Court of inquiry wanted them to take. The 28 complaint is that some of the relevant witnesses such as ship modeling instructor involved in the conduct of the ship modeling competition during IGC NSC-2018 was not summoned and that undue importance was given to Captain (IN) D. Srinivas and Commander Bindu Kumar.
41. The aforesaid complaint is a general complaint made without giving any specifics as to the instances where the Court of inquiry had sought to change the answers given by them or sought to shut out the evidence or statements being given by them.
42. Another angle that needs to be considered is that all the complaints have emanated from the officers against whom the Court of Inquiry had given adverse findings. The question of whether these complaints were given only to get the members of the Court of Inquiry removed would also arise.
43. In the circumstances this court does not find any case of bias or reasonable apprehension of bias being made out. However, it must be borne in mind that a court of Inquiry is only a mechanism to ascertain facts and any action against the petitioner would be after convening a court martial, where the petitioner would still be given an opportunity to make out his defence, including the allegation of bias on the basis of any 29 further material. It may also be clarified that this court is not going into the question of whether the Petitioner in W.P.N0. 841 of 2020 had influenced the decision making process. This court is restricting itself to the question of whether any case of bias has been made out by the Petitioner.
44. The writ petitioner, in W.P. No. 45114 of 2018, has been deprived of her medical seat unfairly. That seat has been given to the 5th respondent in W. P. No. 45114 of 2018. As the 5th respondent would have completed her medical degree by now, there would be no point in taking away such a degree from her. Accordingly, no further directions need be given in this regard. The wrong done to the petitioner would have to be set right. In view of the passage of time, it would not be possible to allot a seat to the petitioner. However, the principle of equity, in such a situation, would be to compensate the petitioner for her loss. The Hon'ble Supreme Court, in the case of Krina Ajay Shah V. The Secretary, Association of Management of Unaided Private Medical and Dental Colleges, Maharashtra & Ors,8 in the order dated 13.02.2017, in Civil Appeal No. 1727 of 2016, in the order dated 13.12.2019 in Civil Appeal No. 1081 of 2017 had awarded damages to students who were unfairly deprived of medical seats. Similarly, a Division Bench of the erstwhile High Court for 8 2016 (1) SCC 666 30 the States of Telangana and the State of Andhra Pradesh had awarded compensation to the students who had been similarly deprived of their medical seats, on account of the NCC Directorate. Following the said precedents, it would be appropriate to award a sum of Rs. 10 lakhs, as damages, to the Petitioner in W.P.No.45114 of 2018. The petitioner lost her medical seat on account of the actions of the officers of the NCC Directorate (A.P. & T) and it is only appropriate that these damages are paid by the NCC Directorate (A.P. & T) within a period of six (6) weeks, from the date of receipt of this order, to the Petitioner.
Accordingly, both the Writ Petitions are disposed of. There shall be no order as to costs.
Miscellaneous petitions, pending if any, shall stand closed.
___________________________________ JUSTICE R.RAGHUNANDAN RAO Date :13.07.2023 RJS 31 THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO WRIT PETITION Nos.45114 of 2018 & 841 of 2020 Date : 13.07.2023 RJS 32