Gujarat High Court
Shaikh Salmabanu Fakkhruddin vs Gujarat University & 2 on 28 July, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8741/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8741 of 2015
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SHAIKH SALMABANU FAKKHRUDDIN....Petitioner(s)
Versus
GUJARAT UNIVERSITY & 2....Respondent(s)
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Appearance:
MR BHARGAV HASURKAR, ADVOCATE for the Petitioner(s) No. 1
MR SIKANDAR SAIYED, ADVOCATE for the Respondent(s) No. 3
MR. S.N .SHELAT, SENIOR ADVOCATE with MRS VD NANAVATI,
ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/07/2015
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the petitioner desirous of seeking appointment as an Assistant Professor in the subject of Urdu, has prayed for the following reliefs;
"A. YOUR LORDSHIPS be pleased to issue a writ of mandamus or any other appropriate writ, order or direction for quashing the selection process held by respondent Gujarat University, for the post of Assistant Professor of Urdu pursuant to the advertisement issued and interview held 13-5-2015 and further be pleased to hold and declare that the entire selection process for the said post is vitiated for the contentions raised in the petition and further be pleased to command Respondent No.1 University to hold fresh interview of the post of Assistant Professor of Urdu by a properly constituted Committee appointing any other person than Respondent No.2 as member of the Selection Committee.Page 1 of 19 C/SCA/8741/2015 ORDER
B. YOUR LORDSHIPS be pleased to stay the operation and implementation of the decision taken by the Gujarat University for filling up of the post of Assistant Professor of Urdu by appointing Respondent No.3 pursuant to advertisement issued and interview held on 13-5-2015, pending admission, hearing and final disposal of this petition.
C. YOUR LORDSHIPS be pleased to command the Gujarat University, respondent No.1 to produce entire material of selection process and minutes of Selection Committee pursuant to interview held on 13-5-2015 immediately before this Hon'ble High Court pending admission, hearing and final disposal of this petition.
D. Any other just and proper relief may also be granted in favour of the petitioner."
2. The case of the petitioner may be summarized as under;
2.1 The Gujarat University issued an advertisement for the appointment of the Assistant Professor in the subject of Urdu. The applications were invited from the eligible candidates for the post of Assistant Professor (Urdu) accordingly. Pursuant to the advertisement, the petitioner herein and also the respondent No.3 applied for the said post. The post is reserved for the SEBC candidates. There were in all seven candidates including the petitioner and the respondent No.3 who were found to be eligible for consideration. According to the UGC Regulations, a selection committee of seven members was constituted. The details of the said committee are as under;
"1) Dr. M.N. Patel Vice Chancellor to be the Chairperson of the Selection Committee
2) Dr. M.B. Dholakia Professor An Academic who is the nominee of the Page 2 of 19 C/SCA/8741/2015 ORDER Government.
3) Prof. Saheb Ali
Professor of Urdu
Department of Urdu, University of Mumbai
4) Prof. Tauqeer Ahmed Khan Professor of Urdu Department of Urdu, University of Delhi
5) Prof. Anwar Zaheer Ansari Professor Department of Urdu, M.S. University of Baroda, Vadodara.
6) Prof. Ranjana Argade
Head of the Department
7) Prof. K.H. Chikhalia
An Academic representing SC/ST/OBC/Differently- abled categories"
2.2 The respondent No.2 against whom allegations have been levelled by the petitioner herein was also one of the members of the selection committee. It appears that the candidates appeared before the selection committee and they were interviewed.
2.3 The entire case of the petitioner is based on conjectures, surmises and assumptions. According to her, since the respondent No.2 had acted as a guide to the respondent No.3, he could not have acted as one of the members of the selection committee. The case of the petitioner is that being a guide of the respondent No.3, he would definitely be partial to the respondent No.3. It is the case of the petitioner that this has caused bias.
2.4 On behalf of the respondent No.1-University, an affidavit-Page 3 of 19 C/SCA/8741/2015 ORDER
in-reply has been filed duly affirmed by the Registrar, inter alia, stating as under;
"3. I submit that the petitioner is not entitled to the relief in terms of 8A for quashing the selection process held by the respondent University for the post of Assistant Professor, Urdu pursuant to the advertisement issued and interview held on 13.05.2015;
4. I submit that the applications were invited for the post of Assistant Professor, Urdu. Pursuant to the said advertisement, the petitioner applied for consideration. The petitioner and respondent No.3 applied for the said post of Assistant Professor Urdu. The post is reserved for SEBC candidates. There were 7 candidates who were found eligible for consideration. As required under the UGC Regulation, the Selection Committee was constituted as under:-
"1) Dr. M.N. Patel Vice Chancellor to be the Chairperson of the Selection Committee
2) Dr. M.B. Dholakia Professor An Academic who is the nominee of the Government.
3) Prof. Saheb Ali
Professor of Urdu
Department of Urdu, University of Mumbai
4) Prof. Tauqeer Ahmed Khan Professor of Urdu Department of Urdu, University of Delhi
5) Prof. Anwar Zaheer Ansari Professor Department of Urdu, M.S. University of Baroda, Vadodara.
6) Prof. Ranjana Argade
Head of the Department
7) Prof. K.H. Chikhalia
Page 4 of 19
C/SCA/8741/2015 ORDER
An Academic representing SC/ST/OBC/Differently-
abled categories"
Head of the Department was requested to be a member of the Committee since the Board of Studies was not constituted. Annexed hereto and marked as ANNEXURE-A (colly) are the copies of the guidelines laid down by UGC Regulation, 2013 (amended from time to time) as also list of candidates who were found to be eligible.
5. I submit that I called upon the petitioner as to how the petitioner has came to know that respondent No.3 has been selected and that the petitioner is not selected for appointment. The petitioner must disclose the source from which the petitioner has sought such information about respondent No.3 having been selected for appointment and that there is decision to appoint respondent No.3. In absence of such information the petition deserves to be dismissed in the limine because the present petition is abuse of process of Court in seeking relief which requires to be vacated forthwith.
6. I submit that the Selection Committee has made its own assessment on consideration of the respective merits. The Selection Committee placed its recommendation in sealed cover and the sealed cover has still not been opened as this Hon'ble Court has subsequently stayed the appointment by order dated 18.05.2015.
7. I submit that the Screening Committee was appointed for consideration of API and PBAS which consisted of following members:-
1) Dr. R.S. Patel 2) Dr. P.N. Gajjar 3) Dr. N.K. Jain 4) Dr. K.H. Chikhalia 5) Dr. Meenu Saraf 6) Dr. Himanshu A. Pandya
The Screening Committee found both the petitioner and respondent No.3 eligible for consideration. Annexed hereto and marked as ANNEXURE-B is a copy of the statement showing eligibility found by the Screening Committee. I therefore submit that the petitioner is not Page 5 of 19 C/SCA/8741/2015 ORDER right in contending that respondent no.3 is not eligible for consideration.
8. I submit that respondent No.2 Prof. Anwar Zaheer Ansari is Professor of Urdu, Faculty of Arts, M.S. University, Vadodara and he has approximately 22 years teaching experience and he is the only Professor in Urdu in the State. In the course of his duty as Professor he has guided several Ph.D students and amongst the candidates who had applied for consideration Nasimbanu Shaikh is also a student of respondent No.2. The allegation of he being biased is wholly unjustified. As indicated hereinabove the Selection Committee consisting of 07 members and it is erroneous to suggest that respondent No.2 influenced Selection Committee as alleged.
9. I submit that one of the members of the Selection Committee was the Guide when one of the candidate is doing her or his PHD can influence the decision and the Committee which consists of highly placed academicians. As a senior teacher, it is the duty to guide their students. The Selection Committee has to be drawn from the teaching faculty. It is always possible that any candidate may be at one time student of the teacher. I deny that being a Guide can disqualify being the member of the Selection Committee.
10. I therefore submit that the petitioner is not right in considering that merely because respondent No.2 happens to be a members of the Committee, the selection process is vitiated. Respondent No.2 cannot be said to have any ill-will towards the petitioner. All of them were considered at a time and the minutes of the Selection Committee is still not opened for offering any appointment."
2.5 On behalf of the respondent No.3 also an affidavit-in- reply has been filed denying the allegations levelled in the petition.
3. Mr. Hasurkar, the learned advocate appearing for the petitioner, vehemently submitted that the entire selection process is vitiated since the respondent No.2 acted as one of Page 6 of 19 C/SCA/8741/2015 ORDER the members of the Selection Committee. He submitted that knowing fully well that he had acted as the guide of the respondent No.3, he should not have been a part of the Selection Committee. According to Mr. Hasurkar, the sanctity of the entire selection process could be said to have been lost. According to Mr. Hasurkar, the entire selection process should be quashed and the University be directed to undertake a fresh recruitment process to fill up the post of the Assistant Professor for the subject of Urdu.
3.1 Mr. Hasurkar, the learned advocate appearing for the petitioner, has placed reliance on the following decisions of the Supreme Court.
1) Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant & Ors, (2001) 1 SCC 182.
2) State of W.B. & Ors. v. Shivananda Pathak & Ors., (1998) 5 SCC 513.
3) Rattanlal Sharma v. Managing Committee, Dr. Hariram (Co-Education) Higher Secondary School & Ors., (1993) 4 SCC 10.
4. Mr. S.N. Shelat, the learned senior advocate assisted by Ms. Vaibhavi Nanavati appearing for the University, vehemently opposed this writ application and submitted that the petition itself is not maintainable. Mr. Shelat submitted that the result has not yet been declared. The result has been kept in a sealed cover. There is no reason or any basis for the petitioner to believe at this stage that she has not been Page 7 of 19 C/SCA/8741/2015 ORDER selected and the respondent No.3 has been selected or any other candidate. Mr. Shelat submitted that the respondent No.3 being the only professor in the subject of Urdu in the entire State of Gujarat might have acted as a guide of many candidates. Merely because the respondent No.2 happened to be one of the members of the Committee, the selection process could not be said to have been vitiated. Mr. Shelat, in support of his submissions, placed reliance on a decision of the Supreme Court in the case of Dalpat Abasaheb Solunke vs. Dr. B.S. Mahajan, AIR 1990 SC 434.
5. Mr. Saiyed, the learned advocate appearing for the respondent No.3 submitted that the petition deserves to be rejected as the same has been filed without any basis. He submitted that the allegations levelled in the petition are absolutely reckless.
6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to the relief prayed for in this writ application.
7. It appears from the materials on record that the result of the interview has been kept in a sealed cover. It is difficult for me to understand as to on what basis the petitioner is contending that it is the respondent No.3 who has been selected because the respondent No.2 was his guide and he also acted as one of the members of the Selection Committee. The respondent No.2 has acted as a guide for many students. Only because he was one of the members of the Selection Page 8 of 19 C/SCA/8741/2015 ORDER Committee along with the six others, one should not assume that his presence in the Committee would have influenced the other members also, as a result something in favour of the respondent No.3 as alleged. This is exactly what the Supreme Court has explained in the decision referred to above which has been relied upon by Mr. Shelat.
8. I may quote the observations made by the Supreme Court in para-10.
"10. The fourth and the last ground given by the High Court to set aside the appointment of the appellant in CA No. 3507/89 is that the fourth and the fifth respondents to the Writ Petition were guides of the appellant when he was doing his M.Sc. by Research. We are unable to understand as to how the fact that they were his guides when the appellant was doing his M.Sc. would influence their decision in selecting him, or vitiate the selection made. They must have been guides to many who had appeared for the interview. As senior teachers in the Faculty in question, it is one of their duties to guide the students.In fact, very often the experts on the selection Committees have to be drawn from the teaching faculty and most of them have to interview candidates who were at one or the other time heir students.That cannot disqualify them from being the -members of the Selection Committees. In fact, as stated by the 4th respondent in his affidavit before the High Court, even the 2nd respondent, the aggrieved candidate was also his student. Curiously enough the High Court has discarded the said fact by observing that in point of time, the appellant was closer to the 4th respondent as a student since the appellant was his student at a later date. It is not necessary to comment further on this reasoning.
As an aside of the very same reason, the High Court has also found the presence of the sixth respondent on the Committee as vitiating the selection, and the only reason given by the High Court in that behalf is as follows:Page 9 of 19 C/SCA/8741/2015 ORDER
".......... In this background if we consider the reply of sixth respondent, Shri Shyamrao S. Kadam, the member of the Selection Committee were of the opinion that the apprehension expressed by the petitioner that the members of the Selection Committee had shown favour to the 7th respondent cannot be said to be without any substance."
There is no discussion or finding given by the High Court on the alleged role played by the 6th respondent. We are therefore at a loss to know in what manner the 6th respondent had influenced the decision of the Selection Committee. Probably the Court had nothing further to say with regard to the alleged "role" of the 6th respondent. We therefore, refrain from saying anything more on the subject."
9. The matter could be looked into a little differently. The petitioner, without any objection as regards the composition of the Selection Committee which included the respondent No.2, appeared voluntarily before it. The petitioner took a chance of having a favourable recommendation from it. Having done so, is it open for her now to turnround and question the inclusion of the respondent No.2 in the Committee on the principle of bias.
10. One of the aspects of the judicial review on the ground of bias is that the bias resulting from malice in fact can be waived. A person, who waives bias, is estopped from challenging the action in a Court of Law. In 'service jurisprudence' it is well settled that a prospective selectee who knowingly appears before the Selection committee is seldom permitted to complain that one of the members of the Selection Committee is biased and hence selection is vitiated. In G. Sarana v. Lucknow University, AIR 1976 SC 2428, after referring to Manaklal v. Prem Chand, AIR 1957 SC 425, A.K. Page 10 of 19 C/SCA/8741/2015 ORDER Kraipak v. Union of India, AIR 1970 SC 150 and S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701, the Supreme Court held that a candidate, who knowingly voluntarily appears before the Selection Board cannot be heard to complain against the Selection Board. The observations and the law declared by the Supreme Court, which are apt for the purpose, are as under :
". . . . . .In a group deliberation and decision like that of a Selection Board, the members do not function as computers.Each member of the group of board is bound to influence the others, more so if the member concerned is a person with special knowledge.
His bias is likely to operate in a subtle manner. . . . . . . . . . . We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias asdespite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee."
11. The petitioner indisputably knew that the respondent No.2 had acted as a tutor of the respondent No.3. Despite the same, she did not object till the filing of this writ application. She voluntarily appeared before a Selection Committee consisting of seven members. The decision is yet being awaited. She herself does not know who has been selected.
12. In the aforesaid context, I may quote with profit a decision of the Supreme Court in the case of Utkal University Page 11 of 19 C/SCA/8741/2015 ORDER vs. Dr. Nrusingha Charan Sarangi & ors., AIR 1999 SC
943. I may quote the observations made by the Supreme Court in paras- 9 and 10.
"9. The last contention of the first respondent which has been accepted by the High Court is that of bias on the part of one of the members of the Selection Committee. The so-called bias, as set out in the original petition, is that one of the experts was a member of an Organisation which brought out a magazine of which the selected candidate was the Editor while one of the members of the Selection Committee was on the Editorial Board. Both the University as well as the selected candidate have pointed out that this fact was known to the first respondent throughout. He did not, at any time, object to the composition of the Selection Committee. He objected only after the selection was over and he was not selected. This would amount to waiver of such objection on the part of the first respondent. Reliance is placed on a decision of this Court in G. Sarana v. University of Lucknow reported in (1977) 1 SCR 64 : (AIR 1976 SC 2428) in which this Court found that despite the fact that the appellant knew all the relevant facts, he had voluntarily appeared before the Committee and took, a chance of having a favourable recommendation from it.
Having done so, it was not open to him to turn round and question the constitution of the Committee. A similar view has been taken by this Court in the case of U. D. Lama v. State of Sikkim reported in (1997) 1 SCC 111 at
119.
10. What is more, we fail to see how on account of one of the experts being a member of an Organisation or being on the Editorial Board of a magazine brought out by that Organisation, he would necessarily be favourably inclined towards the Editor of that magazine. There is no allegation of any personal relationship between the member of the Selection Committee and the candidate. Not unnaturally, the concerned member of the Selection Committee has taken strong exception to the charge of bias. In his letter addressed to the University dated 10-6- 1994, he has pointed out that he was, in fact, more closely connected with the first respondent, Dr. Page 12 of 19 C/SCA/8741/2015 ORDER Nrusingha Charan Sarangi than the selected candidate. He has pointed out that the first respondent hails from his native place, belongs to the family of his priest and the first respondent has dedicated his book to the said member. All this is prior to the said interview. He has also pointed out that he agreed to be associated with the said Shri Jagannath Gabesana Parishad only because his teacher is one of its founders. Another expert on the Selection Committee, Dr. J. B. Mohanty, has also addressed a letter dated 21-1-1994 to the University pointing out that the selected candidate was selected on merit after taking into consideration his academic record, Honours teaching experience, research activities and performance at the interview. The first respondent although he was given time to file a counter affidavit hereafter all these documents were disclosed, has not filed any reply. Allegations of bias must be carefully examined before any selection can be set aside. In the first place, it is the joint responsibility of the entire Selection Committee to select a candidate who is suitable for the post. When experts are appointed to the Committee for selection, the selection should not be lightly set aside unless there is adequate material which would indicate a strong likelihood of bias or show that any member of the Selection Committee had a direct personal interest in appointing any particular candidate.The expert in question, in the present case, had no personal interest in the selection of any particular candidate. It is not even alleged by the first respondent that he had any such personal interest in selection of the candidate who was selected. The mere fact that the expert as well as one of the candidates were members of the same organisation and connected with the magazine brought out by it would not be sufficient, in the facts and circumstances of the present case, to come to a conclusion that the selector had a specific personal interest in the selection of that candidate. The experts, in the present case, are experts in Oriya language and are men of stature in their field. The candidates who would be considered for selection by the Selection Committee would also be candidates who have some stature or standing in Oriya language and literature, looking to the nature of the post. Any literary association in this context, or any knowledge about the literary activities of the candidates would not, therefore, necessarily lead to a conclusion of bias. Looking to the circumstances of the Page 13 of 19 C/SCA/8741/2015 ORDER present case, it is not possible to come to a conclusion that the Selection Committee was biased in favour of the candidate selected."
13. The word 'Bias' in popular English parlance stands included within the attributes and broader purview of the word 'malice', which in common acceptation mean and imply 'spite' or 'ill-will' (Stroud's Judicial Dictionary (5th Ed.) Volume 3) and it is now well settled that mere general statements will not be sufficient for the purposes of indication of ill-will. There must be cogent evidence available on record to come to the conclusion as to whether in fact there was existing a bias which resulted in the miscarriage of justice.
14. While it is true that legitimate indignation does not fall within the ambit of malicious act, in almost all legal enquiries, intention, as distinguished from motive is the all-important factor. In common parlance, a malicious act has been equated with intentional act without just cause or excuse (see in this context Jones Bros. (Hunstanton) v. Steven, (1955) (1) QB 275) [see Kumaon Mandal Vikas Ltd. v. Girja Shankar Pant & Ors., AIR 2001 SC 24(1)].
15. The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. If on the other hand the allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis Page 14 of 19 C/SCA/8741/2015 ORDER therefor would not arise.
16. It is in the same vein that the Supreme Court termed it as reasonable likelihood of bias in Rattan Lal Sharma's case (Rattan Lal Sharma v. Managing Committee Dr. Hari Ram (Co- education) Higher Secondary School, (1993) 4 SCC 10 : (1993 AIR SCW 2400 : AIR 1993 SC 2155 : 1993 Lab IC 1808) wherein the Supreme Court was pleased to observe that the test is real likelihood of bias even if such bias was, in fact, the direct cause. In Rattan Lal Sharma's case (supra) real likelihood of bias has been attributed a meaning to the effect that there must be at least a substantial possibility of bias in order to render an administrative action invalid.
17. In the case of ABP Pvt. Ltd. v. Union of India & Ors., AIR 2014 SC 1228, the Supreme Court in paras-35 and 16 observed thus;
"35. It is well-settled that mere apprehension of bias is not enough and there must be cogent evidence available on record to come to the conclusion. Reference may be made to Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant (2001) 1 SCC 182 : (AIR 2001 SC 24 : 2000 AIR SCW 3826) in the following words:
"10. The word "bias" in popular English parlance stands included within the attributes and broader purview of the word "malice", which in common acceptation means and implies "spite" or "ill-will"
(Stroud's Judicial Dictionary, 5th Edn., Vol. 3) and it is now well settled that mere general statements will not be sufficient for the purposes of indication of ill-will. There must be cogent evidence available on record to come to the conclusion as to whether in fact there was existing a bias which resulted in the miscarriage of justice."
Page 15 of 19 C/SCA/8741/2015 ORDER36. This Court, in State of Punjab v. V. K. Khanna (2001) 2 SCC 330 : (AIR 2001 SC 343 : 2000 AIR SCW 4472), has held as follows:
"8. The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor, would not arise."
18. In the case of N.K. Bajpai v. Union of India & Anr., AIR 2012 SC 1310, the Supreme Court made the following observations;
"35.Bias must be shown to be present. Probability of bias, possibility of bias and reasonable suspicion that bias might have affected the decision are terms of different connotations. They broadly fall under two categories, i.e., suspicion of bias and likelihood of bias. Likelihood of bias would be the possibility of bias and bias which can be shown to be present, while suspicion of bias would be the probability or reasonable suspicion of bias. The former lead to vitiation of action, while the latter could hardly be the foundation for further examination of action, with reference tothe facts and circumstances of a given case.The correct test would be to examine whether there appears to be a real danger of bias or whether there is only a probability or even a preponderance of probability of such bias, in the circumstances of a given case. If it falls in the prior category, the decision would attract judicial castecism but if it falls in the latter, it would hardly effect the decision, much less adversely.
36. Harry Woolf, Jeffey Jowell and Andrew Le Sueur, in their recent book De Smith's Judicial Review (Sixth Page 16 of 19 C/SCA/8741/2015 ORDER Edition) have referred to the concept of 'automatic disqualification', that is, where the element of bias is present and would lead to disqualification on its own. This rule was invoked to invalidate the composition of a disciplinary tribunal of the Council of the Inns of Court, since one of the members of the tribunal had been a member of the Professional Conduct and Complaints Committee of the Bar Council (PCCC) which was the body responsible for the decision to prosecute a member of the Bar before that Tribunal. It was held by the Visitors to the Inns of Court that each member of the PCCC had a common interest in the prosecution and, therefore, was acting as a Judge in his or her own cause. The rule was not free of exceptions. It could even be applied with certain flexibility. On the subject of judicial bias, a greater degree of flexibility has to be applied in cases of automatic disqualification. For example, where the public became aware that a senior member of a firm was acting against one of the parties to the litigation, but, on another matter, it was held that automatic disqualification would not be necessary, as the connection between the firm's success in the case and its profits was "tenuous" and the party had effectively waived the right to challenge an adverse decision in the former litigation.
37. The element of bias by itself may not always necessarily vitiate an action. The Court would have to examine the facts of a given case."
19. I may now deal with the decisions relied upon by Mr. Hasurkar in support of his submissions.
19.1 In the case of Rattanlal Sharma (supra), the facts were altogether different. In that case, disciplinary proceedings were initiated against the Principal of a College. One of the members of the Inquiry Committee had deposed as a witness in support of one of the charges against the principal despite his objection. In such circumstances, the Supreme Court took the view that the entire disciplinary proceedings were vitiated Page 17 of 19 C/SCA/8741/2015 ORDER by bias. I failed to understand how this decision will be helpful to the client of Mr. Hasurkar.
19.2 In the case of State of W.B. & Ors. (supra), the issue before the Supreme Court was whether "judicial obstinacy"
could be treated as a form of "bias". In the facts of that case, the Supreme Court, ultimately, observed that it was not competent for justice Ajit Kumar Sen Gupta to have presided over the Bench in which the judgment impugned was passed as he had already expressed his opinion in the earlier writ petition which was overruled. The Supreme Court, in the facts of that case, observed that the learned Judge should have disassociated himself from the Bench in keeping with the high traditions of the Institution so as to give effect to the rule that "justice should not only be done, it should manifestly be seen to have been done" apart from sitting in appeal, though, collaterally, over his own judgment. This decision of the Supreme Court is also not helpful to the client of Mr. Hasurkar in any manner.
19.3 In the case of Kumaon Mandal Vikas Nigam Ltd. (supra), the Managing Director was found not well dispose of towards the respondent by reason wherefor, the respondent was denuded of the financial power as also the administrative management of the department. The Supreme Court noticed that it was the selfsame Managing Director who had levelled the thirteen charges against the respondent and was the person who had appointed the Enquiry Officer, but afforded a pretended hearing himself late in the afternoon and communicated the order of termination consisting of eighteen pages by early evening. The Supreme Court in the facts of that Page 18 of 19 C/SCA/8741/2015 ORDER case, held that the chain was complete: prejudice apparent:
bias proved. This judgment is also not helpful to the client of Mr. Hasurkar in any manner.
20. The Supreme Court also made it very clear that the decision of the Selection Committee can be interfered with only on limited grounds such as illegality or patent material irregularities in the Constitution of the Committee or its procedure vitiating the selection, or proved malafides effecting the selection etc.
21. In the overall view of the matter, I am not at all convinced with the case put up by the petitioner. In the result, this application fails and is hereby rejected. Ad-interim relief granted earlier stands vacated forthwith. The Registry shall accept the Vakalatnama of Mr. Sikandar Saiyed, the learned advocate who appeared on behalf of the respondent No.3.
22. After the order is pronounced, Mr. Hasurkar, the learned advocate appearing for the petitioner, prays for stay of the operation of the order. In view of what has been observed above, the request is declined.
(J.B.PARDIWALA, J.) Vahid Page 19 of 19