Also ruled by the Apex Court in Medley Minerals India Ltd. v. State of Orissa and Ors. that a plea of malafide has to be specific and demonstrable. As we do not find except the stray incidents quoted by the applicant, non-arraying the concerned as a necessary party is non-discharge of condition precedent for establishing malafide and as such no legal inference could be derived on this issue.
6.6 Placing reliance on the decision in the case of Medley Minerals India Ltd v. State of Orissa, , it was contended that when the petitioner has led some foundation for the allegations of malafides, the impugned order should be struck down.
In Medley Minerals India Ltd. v. State of Orissa, it was observed that it is trite that plea of mala fides has to be specific and demonstrable and the person against whom the mala fides are alleged must be made a party to the proceedings and given reasonable opportunity of hearing.
Further, it is contended that the learned Single Judge ought to have placed reliance upon the decision of the Supreme Court in Nilangshu Bhusan Basu v. Deb K. Sinha , wherein it is held that in the absence of any rule to that effect; it would be an administrative function of the appointing authority to take a decision as to which method should be adopted for recruitment to fill up any particular post of public office (para 7), He also placed reliance on Medley Minerals India Limited v. State of Orissa and Ors. , to contend that there must be specific and demonstrable plea of mala fides and persons against whom mala fides are alleged must be made a party otherwise no finding can be recorded in this regard and relief can be granted to the petitioners. He contended that the writ petition was required to be rejected by the learned Single Judge for suppression of material facts.
16. Countering these arguments, Mr. Parag P. Tripathi, learned
Additional Solicitor General, tried to cut the very root of the
submissions by contending that the person against whom mala fides
are alleged, namely, Mr. A.L. Mehta, was not even impleaded as a
party to these proceedings. Thus, no mala fides could be imputed
WP (C) No. 4722/2008 & batch nsk Page 11 of 19
insofar as Mr. Mehta is concerned in his absence, as held by the
Supreme Court in (1997) 9 SCC 151 and M/s. Medley Minerals India
Ltd. v. State of Orissa & Ors., JT 2004 (8) SC 29. He further
submitted that the petitioner‟s contention that the assessment has
been completed under monitoring of senior officials is also wrong as
is clear from paras 3 and 4 of the impugned order depicting
independent mind of the respondent No.4. Similarly, the plea of the
petitioner that the proceedings have been initiated on account of any
pressure, as alleged, is also wrong and misconceived. His submission
was that the records clearly indicated otherwise.