Delhi High Court
All India Institute Of Medical Sciences vs Prof. Kaushal. K. Verma And Ors. on 5 May, 2015
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat, R.K. Gauba
$~54-57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 05.05.2015
+ W.P.(C) 4103/2014, C.M. Nos. 8224/2014 and 1447/2015
ALL INDIA INSTITUTE OF MEDICAL SCIENCES..... Petitioner
versus
PROF. KAUSHAL K. VERMA AND ORS ..... Respondent
W.P.(C) 4228/2014, C.M. Nos. 8491/2014, 8492/2014 and
1550/2015
RAJU SHARMA AND ORS ..... Petitioners
versus
UNION OF INDIA AND ORS ..... Respondents
W.P.(C) 4245/2014, C.M. Nos. 8533/2014, 8534/2014 and
1446/2015
SANJAY K. AGGRWAL AND ANR ..... Petitioners
versus
UNION OF INDIA AND ORS ..... Respondents
W.P.(C) 7166/2014, C.M. Nos. 3435/2015 and 3436/2015
PROF. S. RAJESHWARI & ORS. ..... Petitioners
versus
UNION OF INDIA & ORS. ..... Respondents
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 1
Presence: Mr. R.K. Gupta, Advocate for petitioner/AIIMS in Item
no.54 and for respondent/AIIMS in item nos.55, 56 &57.
Mr. Rajesh Gogna, Central Govt. Standing Counsel, for
Respondent No.1 in item nos.55 and 56.
Mr. Jagdish. N., for Mr. S. Sunil, Advocate, for
respondent in item nos. 54 to 57.
Mr. Ketan Paul and Mr. Prithu Garg, Advocates for
petitioner in item no.57.
Mr. Arun Bhardwaj, CGSC with Ms. Neha Garg,
Advocate for R-1/UOI in item no.57.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE R.K. GAUBA
S. RAVINDRA BHAT, J
1. This order will dispose off the contentions urged in W.P.(C)
4228/2014 and W.P.(C) 4245/2014. The issue is whether this Bench should
not hear the said Writ Petitions. The writ petitioners, in identically worded
affidavits dated 11.03.2015, urge that the present Bench should not hear this
petition and connected cases since the earlier Bench comprising of one of us
(i.e. S. Ravindra Bhat, J) and Vipin Sanghi, J (who is not part of the Bench)
had, "already prejudged and predetermined the issues involved while
passing the order dated 03.12.2014." This request - to recuse the Bench
comprising of one of the members of the said Bench (S. Ravindra Bhat, J -
hereafter "the Presiding Judge") was first voiced on 04.02.2015. The Court
had then granted time to the petitioners to file affidavits, which they
subsequently did.
2. Firstly, the brief facts are that the writ petition and other connected
petitions - (W.P.(C) 4103/2014 and the others) were preferred by the
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 2
petitioners - identically situated as the petitioners - (in W.P.(C) 4228/2014
and W.P.(C) 4245/2014) wherein they were aggrieved by the final order of
the Central Administrative Tribunal (CAT) dated 04.04.2014 in O.A.
No.2915/2010 (hereafter referred to as "the CAT's impugned order").
Whilst first issuing notice on 08.07.2014 in the writ petition, the then Bench
of Gita Mittal, J and Deepa Sharma, J had directed maintenance of status
quo. Subsequently on 16.10.2014, the matter was listed before the Bench of
Bhat, J and Vipin Sanghi, J. They directed it to be listed on 03.12.2014. On
the latter date, Rule was issued in all connected matters (W.P.(C) 4103/2014,
4228/2014, 4245/2014 & 7166/2014. All the petitioners aggrieved by the
CAT's common order, had urged that initial interim order granted by the
Court should be continued and that the Court should suspend operation of
the CAT's impugned order since it had "serious ramifications on their
careers". The Court's order dealt with the said applications, C.M. Nos.
16835, 16824, 8491 & 8553/2014. According to the petitioners, the CAT's
order was erroneous because it assumed that the AIIMS Recruitment Rules,
1981 had statutory basis. It was also urged that the Assessment Promotion
Scheme (APS) framed in 1992 was extended to enable promotion as
Professors on assessment basis in 2000. The petitioners had been promoted
as Professors. Consequently, they claimed to be lawfully entitled to seniority
over later direct recruits. The petitioners also relied upon two decisions of
the Supreme Court to say that under similar circumstances, officials
promoted under similar schemes constituted temporary additions to the
cadre and entitled to due seniority. The order - after discussing the CAT's
impugned order - went on to discuss the submissions made in the following
terms:
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 3
" 7. This Court has considered the submissions. To take up the
last issue adjudicated right away, even if one assumes that both
sets of Rules, i.e.1981 Rules and the APS to be mere executive
instructions, two facts cannot be disputed. Before 2000, and
until even after 2000, the manner in which the sanctioned posts
of Professors could, and were filled through, was by direct
recruitment. That is the only mode prescribed in the 1981
Rules, and there is no other norm. The 1981 Rules contained
the policy of the AIIMS and was binding as executive
instructions. The APS, which existed by virtue of its
introduction in 1992, was not applicable for Professors; it was
extended to them only in 2000.
8. Prima facie, the APS does not alter the 1981 Rules insofar
as it prescribes that the method of recruitment to the sanctioned
posts of Professor can be filled only by direct recruitment.
Clause (iii) of the APS states as follows:
"(iii) 50% of the eligible Additional Professors with seven
years of regular service in the grade of Additional Professors
may be promoted as Professor each year without linkage to the
vacancies in the grade of Professors, on the following terms
and conditions:-
(a) The presently sanctioned 110 posts of Professors as well as
newly created additional posts of Professors and posts forming
part of the sanctioned strength falling vacant due to retirement,
resignation, death or any other reasons will continue to be
filled by open selection.
(b) The post of Professor vacated by a candidate promoted
from the grade of Additional Professor to that of Professor
under the Assessment Promotion Scheme will be filled only at
the level of Assistant Professor?
(emphasis supplied)"
9. Reliance placed upon Dr. Suman Aggarwal (supra), in
the opinion of this Court, prima facie, is of no use to the
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 4
petitioners because the scheme in question considered by the
Supreme Court expressly provided in Clause 11(1) that the
position of Reader, or Professor to which "personal promotion"
was made, had to be treated as a temporary addition to the
cadre. Similarly, as far as Prof. S.A. Siddiqui (supra) is
concerned, there was nothing in the scheme - contained in
Statutes 27 and 28 - which fell for consideration by the
Supreme Court, which limited the manner in which sanctioned
posts were to be filled up. Like in the case of Dr. Suman
Aggarwal (supra), there was a provision which expressly stated
that seniority of a Professor, or Reader appointed under the
Scheme in question, could be counted from the date of issue of
the order, notwithstanding, that he/ she had been given
retrospective promotion.
10. In the opinion of this Court, prima facie, the petitioners'
arguments do not merit or warrant suspension of the impugned
order of the Tribunal. The applications are, accordingly,
rejected.
11. At this stage, learned counsel for AIIMS requested for
some time to comply with the Tribunal's order. The AIIMS is
granted time till 31.12.2014 to comply with the impugned
order."
3. The petitioners were aggrieved by the above order and carried the
matter and sought leave to appeal to the Supreme Court. The Supreme
Court, while disposing of the Special Leave Petition has observed on
12.12.2014 as follows:
"Heard Mr. F.S. Nariman, learned senior counsel along with
Mr. K.K. Mohan, Mr. Dinesh Dwivedi, learned senior counsel
along with Mr. Ashish Mohan, for the petitioner, Mr. L.
Nageshwar Rao, learned Additional Solicitor General for
AIIMS, Respondent No.2 and had Mr. Hari Shankar, learned
senior counsel for the private respondents.
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 5
Considering the nature of the controversy raised in the
writ petition before the High Court, we are of the convinced
opinion that the interim order dated 08.07.2014 passed in
W.P.C.4103 of 2004 and other connected writ petitions shall
remain in vogue. Needless to emphasize, when you say that the
said order shall remain in vogue, that is to say, the said order
shall revive and the order impugned, that is, the order dated
3.12.2004 shall not be given effect to.
As there has been a cavil with regard to the persons who
have been recruited on the direct recruitment basis and the
petitioners herein who have been promoted, we request the
High Court to dispose of the writ petitions as expeditiously as
possible, preferably within a period of four months. Needless to
say, when there would be final adjudication in the matter
anything that has happened in interregnum, shall not be taken
into consideration.
The special leave petitions are accordingly disposed of.
There shall be no order as to costs."
4. After the order of the Supreme Court, W.P.(C) 4228/2014 was listed
before the Bench of G.S. Sistani, J and Sangita Dhingra Sehgal, J. At that
stage, the office apparently had listed the other petitions before another
Bench. In these circumstances, the said Bench directed all the petitions to be
listed before the appropriate Bench subject to orders of Hon'ble the Chief
Justice. Consequently, the matters were marked to the present Bench which
otherwise, (according to roster allocation) has to decide all manner of tax
appeals and petitions against orders of BIFR, AIFR, DRAT and the writ
petitions concerning validity of statutes and laws with respect to these
subjects. Accordingly, when the petitions were called for hearing on
04.02.2015, learned senior counsel appearing for the Petitioners in W.P.(C)
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 6
4228/2014 and W.P.(C) 4245/2014 urged that this Bench should desist from
hearing the matters. The Court recorded this contention as follows:
"It is stated by Sh. Dinesh Dwivedi, learned senior counsel for
the petitioners in W.P.(C) 4228/2014 and W.P.(C) 4245/2014
that this Bench should not hear the matter since one of us (HMJ
S. Ravindra Bhat) has prejudged the case on account of the
interim orders made. Learned senior counsel states that an
affidavit to this effect would be filed in Court. He requests for
some time.
List on 16.03.2015."
5. The connected petition, i.e. W.P.(C) 7166/2014 was subsequently
listed on 16.03.2015; and was directed to be taken up on 13.04.2014. On the
latter date, learned counsel suggested that the matter may be taken up some
other day; accordingly, all the petitions were listed and submissions of the
parties on the question which this order addresses itself to, heard on
29.04.2015.
6. Sh. Dwivedi, learned senior counsel urges firstly that the order of
03.12.2014 - to the extent it disturbed the existing status quo, amounted to a
determination on the merits of the case. It was stated fairly by learned senior
counsel that whilst the discussion on the submissions made by the parties
with respect to the merits was called for to an extent, given that such
arguments were addressed and the decisions also cited, the petitioners can
yet legitimately seek recusal of this Bench on account of the Presiding Judge
being a part of the Bench which made the order on 03.12.2014, as there is
reasonable apprehension of his having prejudged the issue. It was submitted
that had the Court not - on 03.12.2014, observed that the seniority list had to
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 7
be recast latest by 31.12.2014, such apprehension might not have arisen.
Learned senior counsel relied upon the decisions of the Madhya Pradesh
High Court in Union Carbide Corporation v. Union of India 1988 MPJR
2049. It was urged that where an order - even an interim measure, discloses
prima facie predisposition of a particular judge to decide the lis before the
Court in a certain manner, any party before him likely to be affected by such
predisposition can be said to reasonably apprehend that justice would not be
meted to him impartially. It was emphasized that in such cases, the request
for recusal could not be a reflection on the integrity of the Bench or the
judge, nor can it be understood as reflecting pecuniary or such like bias.
Learned counsel submitted that where the conduct of the proceedings or the
tenor of an order might justly give rise to reasonable appearance of
likelihood of bias, in such event, the Bench or the concerned judge should
dissociate or withdraw himself from proceeding. He relied upon the decision
in Public Utilities Commission of the District of Columbia v. Pollak 1952
(343) US 451, cited in the Union Carbide Corporation case (supra). It was
stated that it is the reasonable apprehension of likelihood of bias and not
actual bias which has to be considered. In Metropolitan Properties Co.
(FGC) Ltd. v. Lannon (1969) 1 QB 577, where the Court stated, "...The
Court does not look at the mind of the justice himself or at the mind of the
chairman of the tribunal, or whoever it may be, who sits in a judicial
capacity. ...The Court looks at the impression which would be given to other
people, Even if he was as impartial as could be, nevertheless if right minded
persons would think that, in the circumstances, there was a real likelihood
of bias on his part, then he should not sit." It was submitted that this context
was endorsed in Ranjit Thakur v. UOI AIR 1987 SC 2386 where it was held
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 8
that the judge does not look inside his own mind to test whether there is bias
but looks at the mind of the party before him in so deciding.
7. Learned senior counsel submitted that the entire test of bias was
revisited by the Supreme Court in its decision in Subrata Roy Sahara v. UOI
and Ors. 2014 (8) SCC 470 where it reviewed all previous decisions in the
context of allegations that the judges who authored the judgment ought to
have recused from the Bench. Learned counsel emphasized that the Court
did not decline the request of recusal because there was no lis pending
before the Court which required decision on the basis of rival claims. It was
emphasized that the merits of claims and counter claims were considered by
the order dated 31.08.2012. In this context, learned counsel relied upon
paras 129 and 130 of the said decision to say that unlike in the present
instance, the merits of the dispute are writ large and have to be decided by
this Court. He, therefore, analyzed that the last part of the order dated
03.12.2014 to the extent it indicated a time limit for the implementation of
the CAT's impugned order - caused in the minds of the petitioners an
apprehension that the merits would not be decided impartially and that this
amounted to an apprehension of a reasonable likelihood of bias by one of us,
i.e the Presiding Judge.
8. The request for recusal has not been endorsed by AIIMS. The other
party before this Court, i.e. Petitioners in W.P.(C) 7166/2014 also do not
subscribe to the submissions of the writ petitioners in W.P.(C) 4228/2014
and W.P.(C) 4245/2014. The respondents - who succeeded before the CAT
in the impugned order have urged that the request for recusal is
unreasonable and not warranted.
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 9
9. Sh. C. Harishankar, learned senior counsel on behalf of the
respondents, urged that this Court should reject the recusal request. He
submitted that accepting the recusal request would mean that in every case,
the party unsuccessful in securing interim relief can potentially claim to
have an apprehension that the Presiding Judge or the Judge concerned is
biased. Every such apprehension cannot be granted unless the conduct of the
proceeding or the tenor of the concerned order from which the request stems
betrays a predilection by the judge to decide in a particular manner. In this
context, learned counsel relied upon Chandra Kumar Chopra v. Union of
India 2012 (6) SCC 369 where it was held that mere suspicion or
apprehension is not good enough to entertain a plea of bias.
"It cannot be a facet of one's imagination. It must be in accord with
the prudence of a reasonable man. It is not to be forgotten that in a
democratic polity, justice in its conceptual eventuality and inherent
quintessentiality forms the bedrock of good governance. In a
democratic system that is governed by the rule of law, fairness of
action, propriety, reasonability, institutional impeccability and non-
biased justice delivery system constitute the pillars on which its
survival remains in continuum...It is worth noting that despite the
sanctity attached to the non-biased attitude of a member of a tribunal
or a court and in spite of the principle that justice must not only be
done but must seen to have been done, it is to be scrutinised on the
basis of material brought on record whether someone makes wild,
irrelevant and imaginary allegations to frustrate a trial or it is in
consonance with the thinking of a reasonable man which can meet the
test of real likelihood of bias. The principle cannot be attracted in
vaccum."
10. Learned counsel next relied upon the decision of the Supreme Court
in R.K. Anand v. Registrar, Delhi High Court 2009 (8) SCC 106 which had
endorsed a Division Bench ruling of this Court which had inter alia stated
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 10
that the path of recusal often is convenient and soft option and that where
unfounded and motivated allegations of bias are made with a view of forum
hunting or Bench preference, succumbing to its pressure would amount to
not adhering to judicial oath. Learned counsel also commended for
consideration the decision of the U.S. Supreme Court in Liteky v. United
States 510 US 540 (1993) where it was stated that opinions formed by the
judge on the basis of comments made in the course of proceedings or in
prior proceedings would not constitute a bias warranting recusal unless they
display a deep-seated favoritism or antagonism that would make fair
judgment impossible.
11. The majority opinion of the Court held that application for recusal
would be unwarranted on ground of bias if they are based on:
"expressions of impatience, dissatisfaction, annoyance, and even
anger, that are within the bounds of what imperfect men and women,
even after having been confirmed as federal judges, sometimes
display. A judge's ordinary efforts at courtroom administration - even
a stern and short-tempered judge's ordinary efforts at courtroom
administration - remain immune."
Crucially, in Liteky (supra), it was held that certain inter-locutary rulings or
orders made and considered in the course of the proceedings displayed bias
which were inadequate grounds to establish bias.
"All of these grounds are inadequate under the principles we
have described above: they consist of judicial rulings, routine
trial administration efforts, and ordinary admonishments
(whether or not legally supportable) to counsel and to
witnesses. All occurred in the course of judicial proceedings,
and neither (1) relied upon knowledge acquired outside such
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 11
proceedings nor (2) displayed deep-seated and unequivocal
antagonism that would render fair judgment impossible."
12. Justice Kennedy, who wrote a separate concurring opinion dealt
specifically with the following situation,
"To take a common example, litigants (like petitioners here) often
seek disqualification based upon a judge's prior participation, in a
judicial capacity, in some related litigation. Those allegations are
meritless in most instances, and their prompt rejection is most
important so the case can proceed. Judges, if faithful to their oath,
approach every aspect of each case with a neutral and objective
disposition. They understand their duty to render decisions upon a
proper record and to disregard earlier judicial contacts with a case
or party."
Justice Kennedy also held that,
"disqualification is required if an objective observer would entertain
reasonable questions about the judge's impartiality. If a judge's
attitude or state of mind leads a detached observer to conclude that a
fair and impartial hearing is unlikely, the judge must be disqualified."
13. In the light of these decisions, it was submitted that the petitioner's
argument that the present Bench should not hear the writ petitions on the
merits on account of reasonable likelihood of bias is devoid of merit and
should be rejected.
Conclusions
14. This Court does not propose to re-visit the body of case-law which
deal with various facets and nuances of bias of a decision maker, or a judge
that taints proceedings or orders. There is a proliferation of judicial thinking
on this score. This order will, however confine the discussion to questions of
when can, in the course of judicial proceedings, or in the nature of a judicial
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 12
order, it be said that the judge has a pre-disposition to decide in a particular
manner (pre-disposition of bias).
15. There is an elaborate discussion on what constitutes non-pecuniary
bias in Subrata Roy Sahara (supra). The context there was the utterly
unfounded charge of pre-disposition of the judges (of the Supreme Court) to
decide in a particular manner. The context was, however, not what the
applicants here urge it to be. That court had earlier, in a reported judgment,
ruled on the merits of the dispute. The enforcement of those directions was
the matter the court was seized with, which led the applicant to question the
participation of the members of the Bench, whose conduct by way of
expressing their opinions during the hearings, became the subject matter of
the (unreasonable) request for recusal. Whilst the court no doubt stated that
it had no adjudicatory role, nevertheless, it declined the application (for
recusal). Pertinently for this case, the court had observed in its judgment, re-
terating the observations of the court earlier in R.K. Anand (supra) that
"...not hearing the matter, would constitute an act of breach of our oath of
office, which mandates us to perform the duties of our office, to the best of
our ability, without fear or favour, affection or ill will." The submission
made by the petitioner was that the judges should recuse themselves because
they had strongly expressed their view about the merits. The petitioner had
questioned a previous judgment of the Supreme Court, as contrary to law.
The judges heard both the arguments on recusal, and the merits of the rival
claims as to the final reliefs, and rejected both contentions. In the light of
these facts - apparent from the face of the judgment itself, the Court is of
opinion that the applicants' argument about the said judgment having been
rendered in the absence of an adjudicatory role (of the court) is meritless.
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 13
This Court is also un-persuaded by the reliance on the Union Carbide
Corporation (supra) decision, where apparently the District Judge laid
himself open to the charge of a pre-disposition (to decide in a particular
manner) by not addressing himself to the submission of the unsuccessful
litigant, leading to the award of a huge ad-interim award of damages of `350
crores. The test of bias, stated by the Madhya Pradesh High Court
(reasonable likelihood of bias) though is accurate. Mercifully, the applicant-
petitioners here do not charge the Presiding Judge of not having dealt with
the submissions - or having dealt with it too elaborately. What they
complain about is the last part of the order of 03-12-2014, which indicated a
time limit for the preparation of the seniority list in accord with the CAT's
impugned order.
16. English law formulated the test of bias in R. v. Gough [1993] AC 646
as follows:
"if, in the circumstances of the case (as ascertained by the court), it
appears that there was a real likelihood, in the sense of a real
possibility, of bias on the part of a justice or other member of an
inferior tribunal, justice requires that the decision should not be
allowed to stand. I am by no means persuaded that, in its original
form, the real likelihood test required that any more rigorous
criterion should be applied. Furthermore the test as so stated gives
sufficient effect, in cases of apparent bias, to the principle that justice
must manifestly be seen to be done, and it is unnecessary, in my
opinion, to have recourse to a test based on mere suspicion, or even
reasonable suspicion, for that purpose.... 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 ..."
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 14
Locabail (Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. 2000 Q.B. 451
reiterated the test enunciated in Gough (supra). In Re Medicaments (No. 2)
[2001] 1 WLR 700 the Court indicated the test of bias as "whether the fair-
minded observer, having considered the facts, would conclude that there
was a real possibility that the tribunal was biased".
20. South Africa also accepts this position. Its Constitutional Court
decision in President of the Republic of South Africa v South African Rugby
Football Union [1999 (4) S.A. 147] held as follows:
"objective and the onus of establishing it rests upon the applicant.
The question is whether a reasonable, objective and informed person
would on the correct facts reasonably apprehend that the judge has
not or will not bring an impartial mind to bear on the adjudication of
the case, that is a mind open to persuasion by the evidence and the
submissions of counsel. The reasonableness of the apprehension must
be assessed in the light of the oath of office taken by the judges to
administer justice without fear or favour; and their ability to carry
out that oath by reason of their training and experience. It must be
assumed that they can disabuse their minds of any irrelevant personal
beliefs or pre-dispositions. They must take into account the fact that
they have a duty to sit in any case in which they are not obliged to
recuse themselves. At the same time, it must never be forgotten that an
impartial judge is a fundamental prerequisite for a fair trial and a
judicial officer should not hesitate to recuse herself or himself if there
are reasonable grounds on the part of a litigant for apprehending that
the judicial officer, for whatever reasons, was not or will not be
impartial."
17. These decisions- Locabail (Locabail (U.K.) Ltd. v. Bayfield
Properties Ltd. 2000 Q.B. 451); Reg. v. Gough [(1993) A.C. 646] and South
African Rugby Football Union (supra) have all been applied by the Supreme
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 15
Court in Kumaon Mandal Vikas Nigam v Girija Shankar Pant (2000) 1
SCC 182.
18. There is no doubt that a judge or a Bench of judges should not only
bring to bear an unbiased mind when they deal with the causes set down
before them, but also appear to be unbiased. This latter requirement is as
crucial to fair administration of justice as the former, because orders and
utterances during the course of examination of the merits, can at times
potentially harm the appearance of impartiality. And here lies the paradox:
the concerned judge(s) are called upon in the first instance to rule on their
apparent bias, which in the words of Justice Robin Jacob draws upon that
judges' "ability to put yourself in the place of the other man or woman,
whether they be litigant or witness or anyone else" (Knowledge of the World
and the Act of Judging, Lord Justice Jacob)
19. In the United States, Section 144 and 455 of Title § 28 deal with
judicial bias. Section 455 states that a judge "shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned." The
section also provides that a judge is disqualified "where he has a personal
bias or prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding".
20. Judges are called upon to hand down orders, in the course of open
court proceedings, on a variety of motions; the most common of these are
applications for interim measures. The prevailing law in our country (and
elsewhere) is that such orders have to necessarily consider the prima facie
strength of the asserting litigant (be she or he the appellant or the claimant
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 16
before the court). Other considerations such as irretrievable hardship and
balance of convenience necessarily enter the judicial matrix. Determinations
of prima facie strengths invariably are based on what the court perceives to
be facially apparent on the record; indeed a deeper scrutiny is avoidable for
the simple reason that a full dress argument would not have been made
occasioning the court to hear all submissions or consider all relevant
materials. Would that mean that a clearly (though not conclusively)
expressed view amounts to the court "pre-judging" the case beforehand?
One thinks that such should not be the case. It is here that the
reasonableness of the litigant's perception of the order (as displaying a
preconceived mind, or predilection of the court to a particular view point)
becomes crucial. Now, every view entertained by a litigant cannot be
expected to be reasonable; there has to be some semblance of what she or he
expects of the court in the circumstances- given that an application for
interim relief would entail a discussion on merits (bereft of which the
appellate court can justly castigate the court granting or denying such relief
for opaqueness in the order itself). Therefore, it is expected that reasonably
the applicant should brace herself or himself for the likelihood of failure - in
the interim relief application. Over-sensitivity therefore, cannot be the basis
of an application (an aspect emphasized in Wendy Ann El-Farargy v Nael
Mahmould El Farargy [2007] EWCA Civ 1149 and more pithly phrased, in
the words of Micheal Kirby, J in Johnson v Johnson (2000) 200 CLR 488,
509, that "a reasonable member of the public is neither complacent nor
unduly sensitive or suspicious"). What then is the proper approach? This
court proposes to deal with a few decisions on this precise issue. "Pre-
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 17
determination" according to the decision in R. (Persimmmon Homes) v Vale
of Glamorgan Council 2010 EWHC 535 (Admin) is:
"...the surrender by a decision maker of its judgment by having a
closed mind and failing to apply it to the task. In a case of apparent
bias, the decision maker may have in fact applied its mind quite
properly to the matter but a reasonable observer would consider that
there was a real danger of bias on its part. Bias is concerned with
appearances whereas predetermination is concerned with what has in
fact happened."
21. Dealing with this precise issue (of interlocutory or pre-merits review
of a case) the work Judges on Trial: The Independence and Accountability
of the English Judiciary By Shimon Shetreet and Sophie Turenne
(Cambridge University Press, 2013) states that:
"Nevertheless, there are time in any trial and in any pre-trial review
where a judge is entitled to express a preliminary view. There is
nothing wrong in a judge indicating the way he may be thinking on a
particular point, provided that this is a provisional view only and that
it does not appear that this is a concluded view."
In Wendy Ann El-Farargy v Nael Mahmould El Farargy [2007] EWCA Civ
1149 the Court of Appeal dealt with a somewhat similar issue:
"This judge had already had to deal with this matter on many
occasions for many days and, in the light of the husband's appalling
forensic behaviour, no observer sitting at the back of his court could
have been surprised that he had formed a "prima facie" view nor even
that it was "a near conviction". A fair-minded observer would know,
however, that judges are trained to have an open mind and that
judges frequently do change their minds during the course of any
hearing. The business of this court would not be done if we were to
recuse ourselves for entering the court having formed a preliminary
view of the prospects of success of the appeal before us. Singer J. did
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 18
express himself in strong terms and he would have been wiser to have
kept his thoughts to himself. But there are times in any trial and in
any pre-trial review where a judge is entitled to express a preliminary
view and I do not see that Singer J. has over-stepped the mark in the
particular circumstances of this case. The husband has behaved
disgracefully yet he, noticeably, has not joined in the application for
the judge to recuse himself. The Sheikh, who allies himself with the
husband, cannot complain too vociferously if some of the judge's
wholly justifiable ire rubs off on him."
Mere strong expression about the likely outcome of a case then is
insufficient to successfully allege bias. What amounts to overstepping the
line is best exemplified in the decision in Ezias v North Glamorgan NHS
Trust 2007 EWCA Civ 330, where the chairman of the Employment
Tribunal, sitting singly, in a pre-trial hearing expressed that the claimant not
only had "little prospect of success" during the hearing and went on to say
that "I would go further and say I have no doubt that it is bound to fail."
Such strongly expressed opinion was held to constitute a pre-disposition of
the judge to hold a particular view, which warranted a justified request for
recusal. The decision of our Supreme Court in Chandra Kumar Chopra
(supra) underlines that "Mere suspicion or apprehension is not good enough
to entertain a plea of bias." The allegation of bias has to be
"scrutinised on the basis of material brought on record whether
someone makes wild, irrelevant and imaginary allegations to frustrate
a trial or it is in consonance with the thinking of a reasonable man
which can meet the test of real likelihood of bias"
22. The true test of bias then, as recognized by Indian courts is much the
same as in UK and South Africa, i.e "real likelihood, in the sense of a real
possibility" (of a judge having through his conduct, or his orders shown
reasonable likelihood of deciding in a particular manner - of having a pre-
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 19
disposition in the case). This test is not, like in the US based on application
of a very high threshold of the judge having "displayed deep-seated and
unequivocal antagonism that would render fair judgment impossible."
(Liteky (supra)). Also, the test pre-supposes that the judge has to consider if
a fair minded and reasonable observer can conclude that the conduct or
order displays pre-disposition of a kind that endangers impartial justice
delivery by him. The judge is not required to "look within" but rather
transpose herself/himself into the shoes of the reasonable and fair minded
by-stander.
23. Returning to the present case, this Court notices that firstly all
petitioners do not support the request for recusal. While this circumstance is
not conclusive by itself, it is important, so far as perception of what is a
reasonable apprehension is concerned. No doubt, the All India Institute of
Medical Sciences cannot have any grievance about any Bench which hears
the cases, because it does not espouse any personal cause, but rather the
interpretation of its policies. However, the petitioners in W.P.(C) 7166/2014
have a grievance with respect to the CAT's impugned order; they have not
joined in the request for recusal. Therefore, in these proceeding, all the
petitioners do not share the perception of the Presiding Judge having pre-
judged the merits of the case.
24. The second and more crucial aspect is that the petitioners (quite
rightly) do not highlight the discussion in the order of 03-12-2014 of the
merits of the submission; they accept such content or discussion as
inevitable, since the arguments with the authorities was made. What they
harp upon is the latter part of the order, which gives a time limit for
preparation of the seniority list. The said portion of the order is extracted
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 20
below:
"10. In the opinion of this Court, prima facie, the petitioners'
arguments do not merit or warrant suspension of the impugned
order of the Tribunal. The applications are, accordingly,
rejected.
11. At this stage, learned counsel for AIIMS requested for
some time to comply with the Tribunal's order. The AIIMS is
granted time till 31.12.2014 to comply with the impugned
order."
The petitioners say that had Paragraph 11 not been phrased as it was, there
would not have been any compulsion for the AIIMS to comply with the
CAT's impugned result, which has serious consequences inasmuch as they
would face serious prejudice by way of loss of seniority, even while the
merits of their petitions are to be decided. As observed earlier, firstly every
litigant who seeks interlocutory relief of any kind, is reasonably aware of the
possibilities of both outcomes; where the court in question is not a final
court, but one of first instance or an intervening appellate court- it has to
record its reasons- howsoever tentative and prima facie. Now, the rejection
of a request to stay or suspend the CAT's impugned order would mean that
the same would have to be complied with. That was the natural corollary.
The Court, however did not direct compliance; it recorded- as is apparent
from the order itself, the AIIMS's request for extension of time, and dealt
with it. No doubt, that had consequences, as rightly pointed out by the
petitioners, yet the consequence was within their reasonable contemplation.
Given such circumstances, this singular feature cannot in the opinion of the
court, be said to constitute a reasonable likelihood for the apprehension that
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 21
the Presiding Judge had pre-judged the merits on 03-12-2014 or had
expressed such strong views as to make it difficult to secure justice. Lastly,
the petitioners' apprehensions are also unfounded because they ignore that
the present Bench comprises of a member (Gauba, J) who was not a
member of the Bench which made the order on 03-12-2014. The arguments
pre-suppose that Gauba, J would have no say in the merits during the final
hearing of the petitions and that the Presiding Judge would invariably
prevail. This assumption is unfounded and undermines the mechanism of
decision making by a Division Bench where judges have an equal say in the
judgment of the court.
25. Before ending this unusually prolix order, which can run into the
danger of self-vindication, the Court observes that requests for recusal are to
be based on reasonable apprehensions; they cannot be speculative or fanciful
suppositions. An observation that needs to be emphasized is that recusals
generally, and especially those fuelled by unjustified demands can be
burdensome on the judges who are eventually called upon to decide the
cause. Whenever made, the concerned court or judge so charged is bound to
take it seriously, as it undermines what is the bedrock of justice delivery-
impartiality. To borrow the words of Beverely Mclachlin (Chief Justice of
Canada) ("Judging in a Democratic State"):
"...judges are not living Oracles. They are human beings, trained in
the law, who struggle to understand the situations before them and to
resolve them in accordance with the law and their consciences.. And
judges must learn to live with being wrong. As human beings, judges
learn early in their career to deal with criticism. Every new judge
dons the judicial robes resolved never to make a mistake. And every
new judge fails. Decisions must sometimes be made without the
opportunity for full reflection. The law may not be entirely clear. The
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 22
truth may be elusive. In the result, even the best judges inevitably are
found to have erred. The errors are publicly identified by appellate
judges and laid plain for all to see. The fact that appellate judges
themselves have been known to err may provide only limited
consolation."
If one may add, the greater the experience of the judge, the more acutely she
or he is aware of her or his fallibility and the pitfalls of acting on impulse or
prejudice. The journey, which begins with certainty, later leads to a path of
many grey areas. Given that language itself is an imperfect medium, words
are but vessels giving shape to ideas and that no human being is perfect, no
judge can claim to be perfect in communicating ideas. The emphasis on a
phrase here or an expression there, bereft of anything more, would not ipso
facto disclose a predilection, or pre-disposition to decide in a particular
manner.
26. For the foregoing reasons, the Court holds as groundless and
misconceived the request by writ petitioners in WP 4228/2014 and WP
4245/2014 that the present Bench, of which S. Ravindra Bhat, J is a
member, should desist from hearing those Petitions and other connected
matters.
27. All the writ petitions are directed to be listed for hearing on 19th May,
2015.
S. RAVINDRA BHAT
(JUDGE)
R.K. GAUBA, J.
1. I have seen the draft of the order, prepared by my brother S. Ravindra Bhat, J., on the request of recusal by the Division Bench headed by him. I W.P.(C)4103, 4228, 4245 & 7166/2014 Page 23 fully concur with the conclusions reached by him and the reasoning leading thereto. I would only add that the request for recusal by the Bench ignores the fact that it comprises of two Judges each of whom have an independent mind to apply. The presence of another Judge with equal say strengthens the rigor of the judicial scrutiny and cannot be undermined.
2. Even otherwise, in my opinion, the last sentence in para 11 of the order dated 03.12.2014 which is quoted as the cause of apprehension was not couched or intended to be a direction by the court. Instead of being read as a mandate detrimental to the interest of the respondents who are seeking recusal, it can also possibly be read in a positive manner inasmuch as the grant of time to AIIMS to comply with the order of CAT inured to the advantage of respondents only inasmuch as it resulted in virtual extension of the status quo order that had been accorded earlier.
3. Formation of tentative opinion at the stage of considering interim relief, particularly when supported by a reasoned order, ought not be construed as pre-disposition of mind. The apprehensions expressed are, thus, unfounded and the request for recusal deserves to be declined.
4. The writ petitions shall come up for hearing on the date indicated in the main order.
R.K. GAUBA
(JUDGE)
MAY 05, 2015
W.P.(C)4103, 4228, 4245 & 7166/2014 Page 24