Himachal Pradesh High Court
Shri S.C. Kainthla vs State Of H.P. & Others on 12 December, 2018
Author: Sandeep Sharma
Bench: Tarlok Singh Chauhan, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP Nos.2061 of 2018 alongwith CWP 2292 of 2018
Order Reserved on: 26.11.2018
.
Date of decision: 12.12.2018
1. CWP No.2061 of 2018
Shri S.C. Kainthla ....Petitioner
Versus
State of H.P. & Others ....Respondents
2. CWP No.2292 of 2018
Shri Rajeev Bhardwaj ....Petitioner
Versus
State of H.P. & Others ....Respondents
Coram
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1 Yes.
For the Petitioner: Mr.Shrawan Dogra, Senior Advocate with
Ms.Nishi Goel, Advocate in CWP No.2061 of
2018 and Mr.R.K. Bawa, Senior Advocate
with Mr.Prashant Kumar Sharma, Advocate
in CWP No.2292 of 2018.
For Respondent No.1: Mr.Vinod Thakur, Additional Advocate
General with Mr.Bhupinder Thakur, Deputy
Advocate General.
For Respondent No.2: Ms.Shalini Thakur, Advocate.
For Respondents 3 & 4: Mr.R.L. Sood, Senior Advocate with
Mr.Arjun Lall, Advocate.
For Respondents 5 & 6: Mr.B.C. Negi, Senior Advocate with
Mr.Pranay Pratap Singh. Advocate.
Per Sandeep Sharma,J.
Initially, on 5th September, 2018 cases captioned hereinabove came to be listed before a Bench comprising of Justice Dharam Chand Chaudhary and Justice Vivek Singh 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 2Thakur, JJ., however, on that day Justice Vivek Singh Thakur, J.
recused. Careful perusal of subsequent orders dated 13.9.2018 and 14.9.2018 passed by Division Bench suggest that two Hon'ble .
Judges; namely; Justice Chander Bhushan Barowalia and Justice Ajay Mohan Goel, JJ. have also recused.
2. On 2nd November, 2018, matter came to be listed before this Division Bench. However, on that day learned counsel representing respondents No.3 and 4 stated that his clients have exception to this matter being heard by one of us (Justice Sandeep Sharma,J.) because the petitioners have not only relied upon the report, co-authored by him, but, have also sought implementation of the same.
3. On 16th November, 2018, learned counsel representing respondents No.3 and 4 again reiterated his aforesaid submission and accordingly this Court directed him to file written objections, if any, to this effect. Pursuant to aforesaid order, aforesaid respondents have filed their affidavits, which are verbatim same.
It would be profitable to take note of contents of one of the affidavits.
4. In the aforesaid affidavits respondents have stated that Hon'ble Mr.Justice Vivek Singh Thakur and Hon'ble Mr.Justice Sandeep Sharma (for short 'Judges Committee'), had prepared/authored the report Annexure P-12 in question, knowing fully well that the same was to be considered for its judicial correctness and applicability by the Hon'ble Apex Court, in terms ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 3 of order dated 28.4.2016, passed by the Hon'ble Apex Court in I.A. No.334 of 2014 in Writ Petition (Civil) No.1022 of 1989, titled: All India Judges Association & Others vs. Union .
of India & Others and as such it cannot be said that aforementioned report authored by Hon'ble Judges Committee is a mere exercise on Administrative side, rather said report is result of judicial scrutiny and application of the minds of the Members of the Hon'ble Judges Committee. Respondents have stated in the aforesaid affidavits that there is reasonable apprehension in their minds that they may not be able to persuade me (Justice Sandeep Sharma) to change my mind and thereafter return a judicial finding, which is not in consonance with the judicial conclusions already reached by the Hon'ble Judges Committee in the report Annexure P-12 in question.
5. Mr.R.L. Sood, learned Senior Counsel representing respondents No.3 and 4, while inviting the attention of this Court to para-9 of affidavit, which has otherwise been taken note hereinabove, contended that though deponents have complete and absolutely firm faith, and believes in the fairness in the present Bench, but since one of us (Justice Sandeep Sharma,J.) has authored report Annexure P-12, which is being relied upon by the petitioners, it would be in the interest of justice in case Justice Sandeep Sharma,J. recuses from hearing the case. While referring to the report Annexure P-12, Mr.Sood made a serious attempt to persuade this Court to agree with this contention that Hon'ble ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 4 Members of Committee, while furnishing its report in continuance to orders passed by Hon'ble Apex Court, has not merely decided claims and counter claims of parties rather has returned .
categorical findings in terms of directions issued by Hon'ble Apex court on 28.4.2016 in I.A. No.334 of 2014 in Writ Petition (Civil) No.1022 of 1989.
6. Mr.Sood further contended that perusal of specific reference made to Hon'ble Judges Committee for adjudication itself suggests that report Annexure P-12 is result of judicial scrutiny, based upon judgments passed by Hon'ble Apex Court in All India Judges' Association and Others vs. Union of India and Others (2002)4 SCC 247 and All India Judges' Association and Others vs. Union of India and Others (2010)15 SCC 170 (for short 'All India Judges Association') and as such it would not be proper and in the interest of justice in case, cases at hand are heard and decided by a Bench in which one of us (Justice Sandeep Sharma,J.) is a Member.
7. Mr.Sood, while referring to the report Annexure P-12 submitted by Hon'ble Judges Committee, also contended that Committee has held petitioners senior to respondents No.2 and 3, while interpreting judgment laid down by Hon'ble Apex Court in All India Judges Association's case (supra) and as such it can be easily interferred and presumed that Justice Sharma, being a Member of that Committee, has/had formed a definite opinion with regard to claim of seniority, which is cause of dispute interse ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 5 between parties. He further contended that since Justice Sharma has already formed an opinion, being a Member of Committee in favour of one of the parties, the respondents, who are definitely .
aggrieved of the report Annexure P-12, cannot be presumed to have unreasonable apprehension in their mind with regard to bias, rather they are well within their rights to contend that since Justice Sharma, being Member of the Committee, has already applied his mind and arrived at one decision, they may not be able to persuade him to change his mind.
8. Lastly, Mr.Sood contended that since Justice Sandeep Sharma has given report Annexure P-12 alonwith Justice Vivek Singh Thakur, who has already recused, he would be pre-
determined to hold the same to be valid and legal. In support of his contention, Mr.Sood placed reliance upon the judgments of Hon'ble Supreme Court in P.D. Dinakaran (I) vs. Judges Inquiry Committee and Others, (2011)8 SCC 380, Sujasha Mukherji vs. High Court of Calcutta through Registrar and Others, (2015)11 SCC 395 and Supreme Court Advocates-on-Record Association and another vs. Union of India (Recusal Matter), (2016)5 SCC 808.
9. After having heard learned counsel appearing for the parties and perused affidavits filed by the respondents, we reserved the order on the question, "Whether one of Members of the present Bench i.e. Justice Sandeep Sharma,J. should recuse from hearing the present petition for the reasons that ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 6 he was Member of Judges Committee, which gave the report Annexure P-12?
10. It may be noticed here that since the question of .
recusal pertains to me (Justice Sandeep Sharma), I proceed to pass instant order to answer the same, in view of the aforesaid submissions made by the learned counsel appearing for the parties.
11. Before deliberating upon the question framed hereinabove it may be noticed that the then Chief Justice vide order dated 12th August, 2016/4th October, 2016 constituted Committee of Justice Vivek Singh Thakur and Justice Sandeep Sharma to submit report in compliance of directions issued by Hon'ble Apex Court on 28.4.2016 in I.A. No.334 of 2014 in Writ Petition (Civil) No.1022 of 1989, wherein Hon'ble Apex Court passed following order:-
"Having regard to the specific direction of this Court in the judgment referred to above in Paragraph 23, we are of the view that it is required to ascertain as to how the 34 point roster for the three different channels are to be worked out.
The High Court is, therefore, directed to apply Rule-13 which prescribes as to how seniority to be drawn by applying the said Rules, ascertain the roster point for the three different categories of promotees and direct recruits and carry out the said exercise from 31.03.2003."
12. It is also matter of record that pending consideration matter before Committee, representations having been filed by the direct recruits judicial officers (respondents herein) were also referred to the Committee by Hon'ble Acting Chief Justice which were taken into consideration by the Committee before giving its final report Annexure P-12. It is also matter of record that before ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 7 report could be filed by aforesaid Committee, Hon'ble Apex Court passed order dated 25.4.2017 in IA Nos.334, 345 of 2014 & 2 of 2016 in IA No.334 of 2014 in Writ Petition (Civil) No.1022 of 1989, .
titled: All India Judges Asson. & Ors. vs. Union of India & Ors.
which reads:-
"Having heard learned counsel for the parties, we request the High Court to submit the report through the counsel by second week of July, 2017. Needless to emphasize, the report of the Committee shall be in consonance with the principal judgments i.e. All India Judges' Association and Others vs. Union of India and Others (2002)4 SCC 247 and All India Judges' Association and Others vs. Union of India and Others (2010)15 SCC 170. We are sure that the High Court shall analyze the judgments and submit the report which will be in accord with both the judgments. When we say in accord with the judgments, the High Court will appreciate both the verdicts in letter and spirit."
13. Vide aforesaid order, Hon'ble Apex Court observed that Committee would analyze the judgments passed by Hon'ble Apex Court in All India Judges' Association's cases (supra) and submit the report which will be in accord with both the judgments.
Hon'ble Apex Court categorically stated that when we say in accord with the judgments, the High Court will appreciate both the verdicts in letter and spirit.
14. Though careful perusal of report Annexure P-12 itself suggests that entire exercise has been done by the Committee in terms of direction contained in judgment rendered by Hon'ble Apex Court in All India Judges Association's case (supra). While specifically dealing with the representations having been filed by direct recruits (respondents herein) all the legal questions were left open to be decided by the Hon'ble Apex Court in the pending ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 8 litigation. Committee, in its report Annexure P-12, while referring to the contentions raised by direct recruits (respondents herein) supported by various legal pronouncements, has categorically .
observed that the scope of present exercise is limited to the extent of preparation of report, drawing seniority of three different categories of promotees and direct recruits and to carry out the said exercise w.e.f. 31st March, 2003, however, it is for the Hon'ble Apex Court to consider legal proposition raised by direct recruits while passing further orders as to the implementation of this report. If report Annexure P-12 in question is read in its entirety, it clearly reveals that Committee gave its report as per reference made to it, whereby it was called upon to ascertain as to how the 34 point roster of the three different channels are to be worked out. Hon'ble Apex Court directed High Court to apply Rule 13 which prescribes as to how seniority is to be drawn by applying the said rule ascertaining the roster point of three different categories of the promotees and direct recruits and accordingly Committee carried out the said exercise w.e.f. 31st March, 2013.
No doubt, subsequently, vide order dated 25.4.2017 Hon'ble Apex Court observed that High Court shall analyze the judgment passed by it in All India Judges Association's case (supra) and submit the report, which shall be in strict accord with both the judgments and hence it can be said that the endeavour has been made by the Committee to give its report in consonance with the judgments ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 9 passed by Hon'ble Apex Court in All India Judges Association's case (supra)
15. It is not in dispute that the report submitted by .
Committee came to be accepted by Full Court of this High Court and was subsequently submitted before Hon'ble Apex Court, who had actually vide order dated 9.10.2017 directed High Court to file comprehensive affidavit with regard to the decision taken by the High Court, and also indicate whether the decision taken by the High Court is in consonance with the judgments rendered by this Court in All India Judges Association's case (supra). However, fact remains that vide subsequent order dated 13.3.2018 passed in I.A. No.334 of 2014 in Writ Petition (Civil) No.1022 of 1989, Hon'ble Apex Court declined to entertain the said I.A. and observed that:-
"I.A. No.334 of 2014 in WP (C) No.1022/1989 This issue raised in I.A. No.334 of 2014 in Writ Petition (Civil) No.1022/1989, as it appears to us from the materials on record, relates to the dispute inter se between the individuals/groups, which, in our considered view, would not be appropriate for determination by this Cort in an I.a. (No.334 of 2014) filed in W.P.(C No.1022/1989 (all India Judges Association & Ors. Vs. Union of India & Ors.). We, therefore, decline to entertain the I.A. any further leaving the parties to have resort to such remedies as may be available to them in law.
I.A. No.334 of 2014 in Writ Petition (Civil) No.1022/1989 is disposed of in the above terms."
16. In the aforesaid background, petitioners have approached this Court in the instant proceedings praying therein for the following main relief(s):-
"(i) Create the cadre of Civil Judge Senior Division w.e.f.
1.7.1996 in accordance with the directions of the Hon'ble Supreme Court of India in All India Judges' ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 10 Association and Others Vs. Union of India and Others (2002)4 SCC 247 and I.A. no.334 of 2014 in Writ Petition (Civil) dated 28.04.2016 and to grant consequential benefits to the petitioner;
(ii) follow the post-based roster w.e.f 31.3.2013 by .
following the report of the Hon'ble Judges Committees and declare the petitioner senior to Respondents no.3 & 4 and to grant all consequential benefits to the petitioner, including considering him for elevation as Judge of High Court by placing relevant material before the competent authority.
(iii) quash the seniority/gradation lists circulated w.e.f.
1.1.2005 onwards particularly gradation list Annexure P-16 circulated on 18.1.2018 showing petitioner junior to respondents No.3 and 4, as being contrary to the directions of the Hon'ble Supreme Court of India in All India Judges Association Case (Surpa) and H.P. Judicial Services Rules, 2004."
17. From the aforesaid given scenario, it is quiet apparent that there is no finding, if any, given by Hon'ble Apex Court, qua the report Annexure P-12 given by the Committee, which has otherwise been accepted by Full Court of this High Court. It is also not in dispute that this Court, by way of an affidavit in compliance to order dated 9.10.2017 submitted to Hon'ble Apex Court, has stated that the Committee has carried out exercise in terms of judgment passed by Hon'ble Apex Court in All India Judges Association's case (supra), however, in para-5 of the aforesaid affidavit (which is available at page No.231 of the present writ petition) High Court has categorically stated that the direct recruits (respondents herein) had relied upon judgment rendered by the five Hon'ble Judges' Bench of the Hon'ble Apex Court in Direct Recruit Class-II Engineering Officers Association vs. State of Maharashtra 1990(2) SCC 715 and other judgments also, however, the said judgments were not considered by the ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 11 Committee as it was beyond its competence and purview to go into such questions, especially in light of the aforesaid directions of the Hon'ble Apex Court.
.
18. Now, in the aforesaid background, question which needs to be decided is that "whether I (Justice Sandeep Sharma), who was Member of Committee who gave report Annexure P-12 in terms of direction issued by Hon'ble Apex Court, should hear present lis or not?.
19. One thing is quiet apparent from the discussion made hereinabove that entire exercise done by the Committee is strictly in terms of orders dated 28.4.2016 and 25.10.2017 passed by Hon'ble Apex Court in I.A. No.334 of 2014 in Writ Petition (Civil) No.1022/1989, whereby specific direction was issued to this High Court to carry out certain exercise in terms of para-23 of judgment rendered by Hon'ble Apex Court in All India Judges Association's case (supra). Hence, it can be said that while giving effect to judgment passed by Hon'ble Apex Court in All India Judges Association's case (supra), Committee, while submitting its report in terms of orders dated 28.4.2016 and 25.10.2017, has certainly interpreted the judgment in its own wisdom. It is also not in dispute, rather matter of record, that respondents, who were afforded an opportunity of being heard, had cited certain judgments before Committee to distinguish judgment passed by Hon'ble Apex Court in All India Judges Association's case (supra), but those were not considered and ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 12 taken into consideration on the ground that since specific reference has been made to the Committee, Committee is not competent to go beyond the same.
.
20. Truly speaking, Committee interpreted judgment to the best of its ability and then submitted its report, as a result whereof respondents, who were objected to the matter being heard by me (Justice Sandeep Sharma), would become junior to the petitioners, in case report is given effect to. No doubt, report submitted by Committee stands accepted by Full Court of this High Court, but at the same time Hon'ble Apex Court, while disposing of I.A. No.334 of 2014 in Writ Petition (Civil) No.1022/1989, titled All India Judges Association and Others vs. Union of India and Others, in which Committee was ordered to be constituted, observed that keeping in view the dispute interse between parties, same cannot be decided in the instant proceedings and as such it declined to entertain the I.A., leaving the parties to have resort to such remedies as may be available to them as per law, meaning thereby there is no adjudication, if any, by the Hon'ble Apex Court qua the correctness of report, which was otherwise called by Hon'ble Apex Court.
21. There is another aspect of the matter that report filed by Committee stands accepted by this Court and implementation thereof is being sought for by the petitioner in the instant petition.
Since the Hon'ble Apex Court has not rendered any adjudication qua the claim of petitioners, wherein they had claimed that they ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 13 are liable to be treated senior to the respondents in view of judgment rendered by Hon'ble Apex Court in All India Judges Association's case (supra), this Court would be necessarily .
obliged/required to go into that question in the instant proceedings.
22. At the cost of repetition, it may be observed that though I am of the view that the Committee in its wisdom has attempted to give report in accordance with the judgment rendered in All India Judges Association's case (supra) and no independent view has been expressed by the Members of the Committee qua the dispute interse between parties, but solely with a view to uphold the principle i.e. justice should not only be done, but should manifestly and undoubtedly be seen to be done, I deem it fit not to hear the matter, in view of the affidavits having been filed by the respondents coupled with the fact that the only other Member of the Committee Justice Vivek Singh Thakur,J. has already recused from the matter.
23. When my recusal was sought from the Bench on 2.11.2018, I had expressed unequivocally to my elder brother that I have no desire to hear the matter, but, at that time one thing which bothered me was that once report submitted by Committee stands already accepted/ratified by Full Court, my recusal from the case may not be the solution because argument, as is being applied in my case, if is accepted, no other Judge would be eligible to hear the case. However, on my persuasion my elder brother ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 14 ordered the matter to be placed before Hon'ble the Chief Justice, who again persuaded me to hear the matter. On 16th November, 2018, on which date objection to hear the matter by me came on .
record by way of affidavits, though for the reasons recorded hereinabove, I would have recused then and there, but I thought it proper to pass reasoned order for recusal because definitely one of the reasons for recusal of a Judge is that litigant/the public might entertain a reasonable apprehension about his impartiality.
It is always in order to uphold the credibility, integrity of the institution, the Judge recuses himself from hearing the case.
24. A Judge, while assuming office, takes an oath as prescribed under Schedule III to the Constitution of India, that:-
".... I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill will and that I will uphold the Constitution and the laws,"
While having taken oath, as referred hereinabove, a Judge is always expected to discharge his duties without fear or favour, affection or ill will. It is only desirable, if not proper, that a Judge, for any unavoidable reason like some pecuniary interest, affinity or adversity with the parties in the case, direct or indirect interest in the outcome of the litigation family directly involved in litigation on the same issue elsewhere, the Judge being aware that he or ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 15 someone in his immediate family has an interest, financial or otherwise that could have a substantial bearing as a consequence of the decision in the litigation, etc. to recuse himself from the .
adjudication of a particular matter. It would be profitable to take note of judgment rendered by Hon'ble Apex Court in P.D. Dinakaran (I) vs. Judges Inquiry Committee and others, (2011)8 SCC 380, wherein the Hon'ble Court has held as under:-
"42. A pecuniary (bias) interest, however small it may be, disqualifies a person from acting as a Judge. Other types of bias, however, do not stand on the same footing and the Courts have, from time to time, evolved different rules for deciding whether personal or official bias or bias as to subject matter or judicial obstinacy would vitiate the ultimate action/order/decision.
50. It is, of course, clear that any direct pecuniary or proprietary interest in the subject-matter of a proceeding, however small, operates as an automatic disqualification. In such a case the law assumes bias. What interest short of that will suffice?
57. It is, thus, evident that the English Courts have applied different tests for deciding whether non- pecuniary bias would vitiate judicial or quasi judicial decision. Many judges have laid down and applied the `real likelihood' formula, holding that the test for disqualification is whether the facts, as assessed by the court, give rise to a real likelihood of bias. Other judges have employed a `reasonable suspicion' test, emphasizing that justice must be seen to be done, and that no person should adjudicate in any way if it might reasonably be thought that he ought not to act because of some personal interest.
60. The five members of the Bench speaking through Gleeson, C.J., referred to the test applied in Australia in determining whether a Judge was disqualified by reason of the appearance of bias, i.e. whether a fair- minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question require to be decided and gave the following reasons for making a departure from the test applied in England:
"That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 16 be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the .
test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial"."
71. The principles which emerge from the aforesaid decisions are that no man can be a Judge in his own cause and justice should not only be done, but manifestly be seen to be done. Scales should not only be held even but it must not be seen to be inclined. A person having interest in the subject matter of cause is precluded from acting as a Judge. To disqualify a person from adjudicating on the ground of interest in the subject matter of lis, the test of real likelihood of the bias is to be applied. In other words, one has to enquire as to whether there is real danger of bias on the part of the person against whom such apprehension is expressed in the sense that he might favour or disfavour a party. In each case, the Court has to consider whether a fair minded and informed person, having considered all the facts would reasonably apprehend that the Judge would not act impartially. To put it differently, the test would be whether a reasonably intelligent man fully apprised of all the facts would have a serious apprehension of bias. In cases of non-pecuniary bias, the `real likelihood' test has been preferred over the `reasonable suspicion' test and the Courts have consistently held that in deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct. We may add that real likelihood of bias should appear not only from the materials ascertained by the complaining party, but also from such other facts which it could have readily ascertained and easily verified by making reasonable inquiries.
74. It is not in dispute that respondent No.3 participated in the seminar organised by the Bar Association of India of which he was Vice-President. He demanded public inquiry into the charges levelled against the petitioner before his elevation as a Judge of this Court. During the seminar, many eminent advocates spoke against the proposed elevation of the petitioner on the ground that there were serious allegations against him. Thereafter, respondent No.3 drafted a resolution opposing elevation of the petitioner as a Judge of this Court. He along with other eminent lawyers met the then Chief Justice of India. These ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 17 facts could give rise to reasonable apprehension in the mind of an intelligent person that respondent No.3 was likely to be biased. A reasonable, objective and informed person may say that respondent No.3 would not have opposed elevation of the petitioner if he was not satisfied that there was some substance .
in the allegations levelled against him.
75. It is true that the Judges and lawyers are trained to be objective and have the capacity to decipher grain from the chaff, truth from the falsehood and we have no doubt that respondent No.3 possesses these qualities. We also agree with the Committee that objection by both sides perhaps "alone apart from anything else is sufficient to confirm his impartiality". However, the issue of bias of respondent No.3 has not to be seen from the view point of this Court or for that matter the Committee.
It has to be seen from the angle of a reasonable, objective and informed person. What opinion he would form! It is his apprehension which is of paramount importance. From the facts narrated in the earlier part of the judgment it can be said that petitioner's apprehension of likelihood of bias against respondent No.3 is reasonable and not fanciful, though, in fact, he may not be biased."
25. In nutshell, what emerges from the aforesaid judgment is that while determining whether non-pecuniary bias would vitiate judicial or quasi judicial decision, one should rely a `reasonable suspicion' test emphasizing that justice must be seen to be done, and that no person should adjudicate in any way if it might reasonably be thought that he ought not to act because of some personal interest. Another principle, which emerge from the aforesaid judgment, which has otherwise taken note of, is that no man can be a Judge in his own cause and justice should not only be done, but manifestly be seen to be done. Scales should not only be held even but it must not be seen to be inclined. A person having interest in the subject matter of cause is precluded from acting as a Judge. To disqualify a person from adjudicating on the ground of interest in the subject matter of lis, the test of real ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 18 likelihood of the bias is to be applied. Hon'ble Apex Court has held in the aforesaid judgment that one has to enquire as to whether there is real danger of bias on the part of the person against whom .
such apprehension is expressed in the sense that he might favour or disfavour a party.
26. Though in the aforesaid judgment Hon'ble Apex Court has categorically held that the Judges and lawyers are trained to be objective and have the capacity to decipher grain from the chaff, truth from the falsehood. However, the issue of bias is to be seen from the angle of reasonable, objective and informed person. What opinion he would form! It is his apprehension which is of paramount importance.
27. Recently, Hon'ble Apex Court had an occasion to deal with similar situation in a case title Supreme Court Advocates-
on-Record Association and Another vs. Union of India (Recusal Matter), (2016)5 SCC 808, wherein Hon'ble Apex Court decided the issue and laid down certain guidelines, relevant portions of the judgment are reproduced hereinbelow:-
"10. It is one of the settled principles of a civilised legal system that a Judge is required to be impartial. It is said that the hallmark of a democracy is the existence of an impartial Judge.
11. It all started with a latin maxim Nemo Judex in Re Sua which means literally - that no man shall be a judge in his own cause. There is another rule which requires a Judge to be impartial. The theoretical basis is explained by Thomas Hobbes in his Eleventh Law of Nature. He said:
"If a man be trusted to judge between man and man, it is a precept of the law of Nature that he deal equally between them. For without that, the controversies of men cannot be determined but by ::: Downloaded on - 13/12/2018 22:57:23 :::HCHP 19 war. He therefore, said that is partial in judgment doth what in him lies, to deter men from the use of judges and arbitrators; and consequently, against the fundamental law of Nature, is the cause of war."
.
12. Grant Hammond, a former Judge of the Court of Appeal of New Zealand and an academician, in his book titled "Judicial Recusal" (R.Grant Hammond, Judicial Recusal: Principles, Process and Problems (Hart Publishing, 2009) traced out principles on the law of recusal as developed in England in the following words :-
"The central feature of the early English common law on recusal was both simple and highly constrained: a judge could only be disqualified for a direct pecuniary interest. What would today be termed 'bias', which is easily the most controversial ground for disqualification, was entirely rejected as a ground for recusal of judges, although it was not completely dismissed in relation to jurors.
This was in marked contrast to the relatively sophisticated canon law, which provided for recusal if a judge was suspected of partiality because of consanguinity, affinity, friendship or enmity with a party, or because of his subordinate status towards a party or because he was or had been a party's advocate."
He also pointed out that in contrast in the United States of America, the subject is covered by legislation.
13. Dimes v. Grand Junction Canal, (1852) 10 ER 301, is one of the earliest cases where the question of disqualification of a Judge was considered. The ground was that he had some pecuniary interest in the matter. We are not concerned with the details of the dispute between the parties to the case. Lord Chancellor Cottenham heard the appeal against an order of the Vice-Chancellor and confirmed the order. The order went in favour of the defendant company. A year later, Dimes discovered that Lord Chancellor Cottenham had shares in the defendant company. He petitioned the Queen for her intervention. The litigation had a long and chequered history, the details of which are not material for us. Eventually, the matter reached the House of Lords. The House dismissed the appeal of Dimes on the ground that setting aside of the order of the Lord Chancellor would still leave the order of the Vice-Chancellor intact as Lord Chancellor had merely affirmed the order of the Vice-Chancellor. However, the House of Lords held that participation of Lord Cottenham in the adjudicatory process was not justified. Though Lord Campbell observed: (Dimes case, ER p.315) "...No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest ::: Downloaded on - 13/12/2018 22:57:24 :::HCHP 20 he had in this concern: but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest .
.... This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence."
14. Summing up the principle laid down by the abovementioned case, Hammond Op cit fn 5 observed as follows:
"The 'no-pecuniary interest' principle as expressed in Dimes requires a judge to be automatically disqualified when there is neither actual bias nor even an apprehension of bias on the part of that judge. The fundamental philosophical underpinning of Dimes is therefore predicated on a conflict of rinterest approach."
15. The next landmark case on the question of "bias" is R. v. Gough, (1993) AC 646. Gough was convicted for an offence of conspiracy to rob and was sentenced to imprisonment for fifteen years by the Trial Court. It was a trial by Jury. After the conviction was announced, it was brought to the notice of the Trial Court that one of the jurors was a neighbour of the convict. The convict appealed to the Court of Appeal unsuccessfully. One of the grounds on which the conviction was challenged was that, in view of the fact that one of the jurors being a neighbour of the convict presented a possibility of bias on her part and therefore the conviction is unsustainable. The Court of Appeal noticed that there are two lines of authority propounding two different tests for determining disqualification of a Judge on the ground of bias:
(1) "real danger" test; and (2) "reasonable suspicion" test.
The Court of Appeal confirmed the conviction by applying the "real danger" test.
16. The matter was carried further to the House of Lords.
Lord Goff noticed that there are a series of authorities which are "not only large in number but bewildering in their effect". After analyzing the judgment in Dimes, Lord Goff held: (R. v. Gough, 1993 AC 646, AC p.661 F-G) "In such a case, therefore, not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there is no question of investigating, from an objective point of view, whether there was ::: Downloaded on - 13/12/2018 22:57:24 :::HCHP 21 any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand."
.
In other words, where a Judge has a pecuniary interest, no further inquiry as to whether there was a "real danger" or "reasonable suspicion" of bias is required to be undertaken. But in other cases, such an inquiry is required and the relevant test is the "real danger" test. (ough case, AC pp.661 G-H-662 A-B) "...But in other cases, the inquiry is directed to the question whether there was such a degree of possibility of bias on the part of the tribunal that the court will not allow the decision to stand. Such a question may arise in a wide variety of circumstances. These include .... cases in which the member of the tribunal has an interest in the outcome of the proceedings, which falls short of a direct pecuniary interest. Such interests may vary widely in their nature, in their effect, and in their relevance to the subject matter of the proceedings; and there is no rule .... that the possession of such an interest automatically disqualifies the member of the tribunal from sitting. Each case falls to be considered on its own facts. "
17. The learned Judge examined various important cases on the subject and finally concluded: (Gough case, AC p.670 E-G) "...Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him...."
18. Lord Woolf agreed with Lord Goff in his separate judgment. He held:
"... There is only one established special category and that exists where the tribunal has a pecuniary or proprietary interest in the subject matter of the proceedings as in Dimes v. Proprietors of Grand Junction Canal, 3 H.L. Case 759. The courts should hesitate long before creating any other special category since this will immediately create uncertainty as to what are the parameters of that category and what is the test to be applied in the case of that category. The real danger test is quite capable of producing the right answer and ensure that the purity of justice is maintained across the range of situations where bias may exist."::: Downloaded on - 13/12/2018 22:57:24 :::HCHP 22
19. In substance, the Court held that in cases where the Judge has a pecuniary interest in the outcome of the proceedings, his disqualification is automatic. No further enquiry whether such an interest lead to a "real danger" or gave rise to a "reasonable suspicion"
is necessary. In cases of other interest, the test to .
determine whether the Judge is disqualified to hear the case is the "real danger" test.
20. The Pinochet case added one more category to the cases of automatic disqualification for a judge. Pinochet, a former Chilean dictator, was sought to be arrested and extradited from England for his conduct during his incumbency in office. The issue was whether Pinochet was entitled to immunity from such arrest or extradition. Amnesty International, a charitable organisation, participated in the said proceedings with the leave of the Court. The House of Lords held that Pinochet did not enjoy any such immunity. Subsequently, it came to light that Lord Hoffman, one of the members of the Board which heard the Pinochet case, was a Director and Chairman of a company (known as A.I.C.L.) which was closely linked with Amnesty International. An application was made to the House of Lords to set aside the earlier judgment on the ground of bias on the part of Lord Hoffman.
21. The House of Lords examined the following questions;
(i) Whether the connection of Lord Hoffman with Amnesty International required him to be automatic disqualified?
(ii) Whether an enquiry into the question whether cause of Lord Hoffman's connection with Amnesty International posed a real danger or caused a reasonable apprehension that his judgment is biased - is necessary?
(iii) Did it make any difference that Lord Hoffman was only a member of a company associated with Amnesty International which was in fact interested in securing the extradition of Senator Pinochet?
22. Lord Wilkinson summarised the principles on which a Judge is disqualified to hear a case. As per Lord Wilkinson: (Pinochet case, AC pp.132 G-H-133 A-C) -
"The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second ::: Downloaded on - 13/12/2018 22:57:24 :::HCHP 23 application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle .
that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.
In my judgment, this case falls within the first category of case, viz. where the judge is disqualified because he is a judge in his own cause. In such a case, once it is shown that the judge is himself a party to the cause, or has a relevant interest in its subject matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure...."
And framed the question: (AC p.134B-C) "....the question then arises whether, in non-
financial litigation, anything other than a financial or proprietary interest in the outcome is sufficient automatically to disqualify a man from sitting as judge in the cause."
(emphasis supplied) He opined that although the earlier cases have "all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification." (AC p.135B)
23. Lord Wilkinson concluded that Amnesty International and its associate company known as A.I.C.L., had a non-pecuniary interest established that Senator Pinochet was not immune from the process of extradition. He concluded that, "....the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties"
24. After so concluding, dealing with the last question, whether the fact that Lord Hoffman was only a member of A.I.C.L. but not a member of Amnesty International made any difference to the principle, Lord Wilkinson opined that: (Pinochet case, AC p.132H-133A) even though a judge may not have financial interest in the outcome of a case, but in some other way his ::: Downloaded on - 13/12/2018 22:57:24 :::HCHP 24 conduct or behaviour may give rise to a suspicion that he is not impartial ....
and held that: (AC p.135 E-F) "... If the absolute impartiality of the judiciary is to .
be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions...."
This aspect of the matter was considered in P.D. Dinakaran (I) v. Judges Inquiry Committee, (2011)8 SCC 380) case,
25. From the above decisions, in our opinion, the following principles emerge;
25.1 If a Judge has a financial interest in the outcome of a case, he is automatically r disqualified from hearing the case.
25.2 In cases where the interest of the Judge in the case is other than financial, then the disqualification is not automatic but an enquiry is required whether the existence of such an interest disqualifies the Judge tested in the light of either on the principle of "real danger" or "reasonable apprehension" of bias.
25.3 The Pinochet case added a new category i.e that the Judge is automatically disqualified from hearing a case where the Judge is interested in a cause which is being promoted by one of the parties to the case.
26. It is nobody's case that, in the case at hand, Justice Khehar had any pecuniary interest or any other interest falling under the second of the above- mentioned categories. By the very nature of the case, no such interest can arise at all.
27. The question is whether the principle of law laid down in Pinochet case is attracted. In other words, whether Justice Khehar can be said to be sharing any interest which one of the parties is promoting. All the parties to these proceedings claim to be promoting the cause of ensuring the existence of an impartial and independent judiciary. The only difference of opinion between the parties is regarding the process by which such a result is to be achieved. Therefore, it cannot be said that Justice Khehar shares any interest which any one of the parties to the proceeding is seeking to promote."
::: Downloaded on - 13/12/2018 22:57:24 :::HCHP 2528. Hon'ble Apex Court in the aforesaid judgment has reiterated that impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also .
to the process by which the decision is made. A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary. A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially.
29. In the aforesaid judgment Hon'ble Mr.Justice Kurian Josph,J., who was one of the Members on the Bench, while concurring entirely with Hon'ble Mr.Justice Jasti Chelameswar and Hon'ble Mr.Justice A.K. Goel, JJ. and partly disagreeing with Hon'ble Mr.Justice Madan B. Lokur,J. has held as under:-
"70. Guidelines on the ethical conduct of the Judges were formulated in the Chief Justices' Conference held in 1999 known as "Restatement of Judicial Values of Judicial Life". Those principles, as a matter of fact, formed the basis of "The Bangalore Principles of Judicial Conduct, 2002" formulated at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague. It is seen from the Preamble that the Drafting Committee had taken into consideration thirty two such statements all over the world including that of India. On Value 2 "Impartiality", it is resolved as follows:
"Principle:
Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.::: Downloaded on - 13/12/2018 22:57:24 :::HCHP 26
Application:
2.1 A judge shall perform his or her judicial duties without favour, bias or prejudice.
2.2 A judge shall ensure that his or her conduct, both .
in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.
2.3 A judge shall, so far as is reasonable, so conduct himself or herself as to minimise the occasions on which it will be necessary for the judge to be disqualified from hearing or deciding cases.
2.4 A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue.
2.5 A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where 2.5.1 the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;
2.5.2 the judge previously served as a lawyer or was a material witness in the matter in controversy; or 2.5.3 the judge, or a member of the judge's family, has an economic interest in the outcome of the matter in controversy:
Provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice."
71. The simple question is, whether the adjudication by the Judge concerned, would cause a reasonable doubt in the mind of a reasonably informed litigant and fair-minded public as to his impartiality. Being an institution whose hallmark is transparency, it is only proper that the Judge discharging high and noble duties, at least broadly indicate the reasons for recusing from the case so that the litigants or the well- meaning public may not entertain any ::: Downloaded on - 13/12/2018 22:57:24 :::HCHP 27 misunderstanding that the recusal was for altogether irrelevant reasons like the cases being very old, involving detailed consideration, decision on several questions of law, a situation where the Judge is not happy with the roster, a Judge getting unduly sensitive about the public perception of his image, .
Judge wanting not to cause displeasure to anybody, Judge always wanting not to decide any sensitive or controversial issues, etc. Once reasons for recusal are indicated, there will not be any room for attributing any motive for the recusal. To put it differently, it is part of his duty to be accountable to the Constitution by upholding it without fear or favour, affection or ill- will. Therefore, I am of the view that it is the constitutional duty, as reflected in one's oath, to be transparent and accountable, and hence, a Judge is required to indicate reasons for his recusal from a particular case. This would help to curb the tendency for forum shopping.
72. In Public Utilities Commission of District of Columbia v. Pollak, 1952 SCC OnLine US SC 69, the Supreme Court of United States dealt with a question whether in the District of Columbia, the Constitution of the United States precludes a street railway company from receiving and amplifying radio programmes through loudspeakers in its passenger vehicles. Justice Frankfurter was always averse to the practice and he was of the view that it is not proper. His personal philosophy and his stand on the course apparently, were known to the people. Even otherwise, he was convinced of his strong position on this issue. Therefore, stating so, he recused from participating in the case. To quote his words: (SCC OnLine US SC paras 33-34) "33. The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self- discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.
34. This case for me presents such a situation. My feelings are so strongly engaged as a victim of the ::: Downloaded on - 13/12/2018 22:57:24 :::HCHP 28 practice in controversy that I had better not participate in judicial judgment upon it. I am explicit as to the reason for my non-participation in this case because I have for some time been of the view that it is desirable to state why one takes himself out of a case."
.
73. According to Justice Mathew in S. Parthasarathi v.
State of A.P., (1974)3 SCC 459], in case, the right- minded persons entertain a feeling that there is any likelihood of bias on the part of the Judge, he must recuse. Mere possibility of such a feeling is not enough. There must exist circumstances where a reasonable and fair-minded man would think it probably or likely that the Judge would be prejudiced against a litigant. To quote: (SCC pp.465-66, para 16) "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 that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle r 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, H.R. in (Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon etc. (1968) 3 WLR 694 at 707). We should not, however, be understood to deny that the Court might with greater propriety apply the "reasonable suspicion" test in criminal or in proceedings analogous to criminal proceedings."
74. There may be situations where the mischievous litigants wanting to avoid a Judge may be because he is known to them to be very strong and thus making an attempt for forum shopping by raising baseless submissions on conflict of interest. In the Constitutional Court of South Africa in The President of the Republic of South Africa etc. v. South African Rugby Football Union,(1999)4 SA 147, has made two very relevant observations in this regard: (ZACC para
46) "46. ... 'Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their ::: Downloaded on - 13/12/2018 22:57:24 :::HCHP 29 case tried by someone thought to be more likely to decide the case in their favour.' ...
'It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not .
decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.'''
75. Ultimately, the question is whether a fair-minded and reasonably informed person, on correct facts, would reasonably entertain a doubt on the impartiality of the Judge. The reasonableness of the apprehension must be assessed in the light of the oath of Office he has taken as a Judge to administer justice without fear or favour, affection or ill-will and his ability to carry out the oath by reason of his training and experience whereby he is in a position to disabuse his mind of any irrelevant personal belief or pre- disposition or unwarranted apprehensions of his image in public or difficulty in deciding a controversial issue particularly when the same is highly sensitive.
76. These issues have been succinctly discussed by the Constitutional Court in The President of the Republic of South Africa, (1999)4 SA 147 on an application for recusal of four of the Judges in the Constitutional Court. After elaborately considering the factual matrix as well as the legal position, the Court held as follows: (ZACC para 104) "104. ...While litigants have the right to apply for the recusal of judicial officers where there is a reasonable apprehension that they will not decide a case impartially, this does not give them the right to object to their cases being heard by particular judicial officers simply because they believe that such persons will be less likely to decide the case in their favour, than would other judicial officers drawn from a different segment of society. The nature of the judicial function involves the performance of difficult and at times unpleasant tasks. Judicial officers are nonetheless required to "administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law". To this end they must resist all manner of pressure, regardless of where it comes from. This is the constitutional duty common to all judicial officers. If they deviate, the independence of the judiciary would be undermined, and in turn, the Constitution itself."
(Emphasis supplied)
77. The above principles are universal in application.
Impartiality of a Judge is the sine qua non for the integrity institution. Transparency in procedure is one of the major factors constituting the integrity of the office of a Judge in conducting his duties and the functioning of the court. The litigants would always ::: Downloaded on - 13/12/2018 22:57:24 :::HCHP 30 like to know though they may not have a prescribed right to know, as to why a Judge has recused from hearing the case or despite request, has not recused to hear his case. Reasons are required to be indicated broadly. Of course, in case the disclosure of the reasons is likely to affect prejudicially any case or .
cause or interest of someone else, the Judge is free to state that on account of personal reasons which the Judge does not want to disclose, he has decided to recuse himself from hearing the case."
30. In the aforesaid judgment, Hon'ble Apex Court has held that litigants would always like to know that why Judge has recused from hearing the case or has not recused to hear despite request and as such reasons are required to be indicated broadly.
31. In the case at hand respondents No.2 and 3 have expressed reasonable apprehension that since I have already applied my judicial mind while furnishing report Annexure P-12, in terms of orders dated 28.4.2016 and 25.10.2017 passed by Hon'ble Apex Court in I.A. No.334 of 2014 in Writ Petition (Civil) No.1022/1989, whereby High Court was specifically asked to submit its report in accord with judgment passed by Hon'ble Apex Court in All India Judges Association's case (supra), I deem it proper not to hear the matter because in the instant proceedings question which necessarily would arise for determination is "whether technically petitioners are justified in claiming seniority over direct recruits (respondents herein) in terms of judgment rendered by Hon'ble Apex Court in All India Judges Association's case (supra) or not", qua which definitely, I, being Member of Judges Committee, have carried out certain exercise in compliance to order passed by Hon'ble Apex Court in All India ::: Downloaded on - 13/12/2018 22:57:24 :::HCHP 31 Judges Association's case (supra) and as such it would not be in the interest of justice to hear the present matter.
32. Consequently, in view of detailed discussion made .
herein above as well as law laid down by Hon'ble Apex Court, I, (Justice Sandeep Sharma) hereby recuse to hear the present matter in the interest of justice. The aforesaid question is answered, accordingly.
33. In view of the aforesaid order, the Registry may place this file before Hon'ble the Chief Justice to constitute a fresh Bench. r (Tarlok Singh Chauhan) Judge 12th December, 2018 (Sandeep Sharma) (aks) Judge ::: Downloaded on - 13/12/2018 22:57:24 :::HCHP