Dr. N. Prabhu Dev vs Dr. B. Kumar and Others

G.C. Bharuka, J.-The appellant is aggrieved by the order dated 24-2-2000 passed by the learned Single Judge in Writ Petition Nos. 32117 to 32119 of 1999 annulling his appointment on the post of the Director of Sri Jayadeva Institute of Cardiology (in short, ''the Institute''), the validity whereof had been questioned almost three years after the date of appointment and that too by persons who, according to the appellant, could not have maintained writ petition for want of locus standi and that too on legally unsustainable grounds.

ABOUT THE INSTITUTE

The Institute is a Society registered under the Karnataka Societies Registration Act, 1960 (in short, the ''Act''). It is not in dispute that the Society is an instrumentality of the State Government and as such it is ''State'' within the meaning of Article 12 of the Constitution of India. Therefore, its actions are amenable to judicial review on the touch stone of fairness, reasonableness and legality.

The Institute is established in order to achieve the avowed object of having an advanced Cardiac Centre for heart diseases and research Training and ancillary activities like that of providing total and comprehensive care to cardiothoracic patients and educating the public regarding control of various heart diseases which are found to be prevalent in our country.

As seen from the Memorandum of Association, the State Government has a deep pervading control over the administration of the Institute. Though, under the Memorandum, the administration of the Institute vest in the Governing Council, but para 5 of the Memorandum confers on the State Government with superior controlling powers relating to amendments in the memorandum pertaining to the composition of Governing Council and other articles, which shall have to be approved by the Government.

The Institute has its Rules and Regulations called "Sri Jayadeva Institute of Cardiology Rules and Regulations, 1983" (in short, the ''Rules and Regulations''). Rule 10 of the Rules and Regulations, clothes and Governing Council with various powers and functions. This rule reads as under:

"Rule 10. Powers and functions of the Governing Council.-(1) Subject to the provisions of the Karnataka Societies Registration Act, 1960, the Governing Council shall manage the Institute so as to promote its objects. It shall have full powers and authority to deal with all matters, things and deeds which are necessary and expedient to carry out the said objects.

(2) The Governing Council shall have the powers to add to, amend, alter or abridge all or any of the objects of the Society consistent with Societies Registration Act, 1960 and subject to approval of the Government of Karnataka.

(3) The Governing Council shall have the powers to add, to amend, alter the Rules and Regulations and Bye-laws of the Society consistent with the Societies Registration Act and subject to approval of the Government of Karnataka.

(4) Without prejudice to the generality of the foregoing, the Governing Council shall have and shall perform the following powers and functions, namely.- (a) the framing of broad policies and procedures to carry out the objects of the Institute;

(b) to make such bye-laws as they shall think essential for the regulation of the business of the Institute;

(c)xxx xxx xxx (s)xxx xxx xxx

(t) such other matters as may be necessary for the efficient administration and management of the Institute".

From Rule 10(3) of the Rules and Regulations, it is clear that the Governing Council can amend the Rules, Regulations and Bye-laws of the Society but subject to fulfilment of two conditions, namely, (i) the amendment should be consistent with the provisions of the Act; and (ii) it will be subject to the approval of the State Government.

Rule 12 of the Rules and Regulations provides for Officers and Employees of the Institute. It reads thus.- "Rule 12. Officers and Employees.-The Staff of the Institute shall consist of.-

The Director;

The Chief Administrative Officer;

Such members of, (a) Professors, Assistant Professors, Lecturers, Registrars, Research Assistants, Surgeons, Physicians, Assistant Surgeons, Residents and other members of the Medical and Scientific staff;

(b) Such other officers and employees as may be required for the Institute and as may be determined by the Governing Council".

Rule 15 of the Rules and Regulations provides for appointment to the post of Director and the mode of recruitment. It reads as under:

"Rule 15. Appointment of Director.-Mode of recruitment.- (i) Appointment by the Governing Council by direct recruitment or on contract basis for a period of five years.

(ii) The Director shall be in overall administrative control and management of the Institute".

Rule 27 of the Rules and Regulations empowers the Governing Council to form committees consisting of members and non-members also for any purpose it considers necessary on such terms and conditions as it may fix.

The Governing Council in exercise of its powers conferred by Rule 10(3) and (4)(b) of the Rules and Regulations, has framed bye-laws called ''Sri Jayadeva Institute of Cardiology Bye-laws, 1983 for creating post of officers and its employees as also providing for mode of recruitment, eligibility and other service conditions. Under Bye-law No. 12, Selection Committees have been constituted to make recommendations to the Appointing Authority for appointment to the various posts of the Institute''.

Admittedly, the Governing Council i s the Appointing Authority for the post of Director. Under Bye-law No. 12(1)(a), a Selection Committee of following members has been provided for the post of Director.

(i) Chairman, Governing Council Chairman

(ii) Co-Chairman Member

(iii) Two outside experts nominated by the Governing Council Member

(iv) Director of Medical Education Member Secretary

The Governing Council has also framed Cadre and Recruitment Rules for appointment of its officers and employees. So far as the post of Director is concerned, the appointment is to be made by the Governing Council by direct recruitment or on contract basis for a period upto five years. The upper age limit for the applicant is 50 years but it is relaxable in special circumstances for which reasons are required to be recorded in writing. The applicant is required to have the following minimum qualification and experience:

(a) Should be holder of a degree in Medicine of any University established by law in India.

(b) Should have any of the post-graduate qualification prescribed in Annexure-A or B.

(c) Should have teaching experience of not less than 10 years after acquiring post-graduate qualification of which not less than 5 years shall be in a post not lower in rank than of Prof. or any other equivalent post.

(d) Should have experience at least of 20 years in Medical profession of which not less than 5 years shall be in a Cardiothoracic Centre/Hospital or Institution.

THE FACTS AND THE LIS

It appears that because of the voluntary retirement of Dr. Gurappa, the then Director of the Institute, the Governing Council, in its meeting held on 20-2-1995 resolved to constitute a Committee of three experts for making appraisal of the candidates and recommend a panel of three names in order of merit for appointment to the post. The Council further resolved to constitute three members expert committee. Subsequently, in the meeting held on 4/5-12-1995, the Governing Council passed a resolution to the following effect.-

"The Governing Council further decided to constitute a Selection Committee consisting of 3 experts for recommending a panel of 3 suitable candidates for the post of the Director, Sri Jayadeva Institute of Cardiology in order of merit. The candidates will have to be selected out of those who respond to the advertisement".

The Government, on consideration of the aforesaid resolutions, agreed with the proposals made therein and under the Government Order dated 31-1-1996 (Annexure-R17) constituted the Selection Committee with the following members:

Dr. J.P. Das,Professor and Head of the Department (Cardiology),Cuttack, Orissa Chairman

Dr. Jagadish Prasad,Chief Cardiovascular Surgeon,Safdarjung Hospital, New Delhi Member

Dr. Raj Gopal,Professor and Head of the Department(Cardiothoracic Surgery), Nizam''s Institute of Cardiology,Hyderabad Member

In the meantime, the Institute issued a notification dated 11-12-1995 inviting applications from eligible candidates for appointment on the post of Director on regular basis. At that time, the appellant was holding the post of Medical Superintendent in the Institute. Pursuant to the said notification, several persons including the appellant as well as the 1st respondent-Dr. B. Kumar, applied for appointment to the post of Director. Admittedly, both the appellant and the 1st respondent had the requisite eligibility as per the Cadre and Recruitment Rules framed by the Institute. The Selection Committee comprised of the above three experts conducted interview of all the eligible candidates on 19-2-1996 and on appraisal of comparative merits, recommended for selection of the appellant as Director on regular basis. It also recommended 1st respondent and one Dr. Yuvagal to be placed in the waiting list.

The Governing Council on considering the above recommendations made by the Selection Committee in its meeting held on 4-3-1996, unanimously resolved to appoint appellant as Director of the Institute. Accordingly, notification dated 6-3-1996 (Annexure-T) was issued to the said effect appointing appellant as the Director for a period of three years from the date of his reporting. Anyhow, since the restricting the period of appointment for three years was found to be contrary to the notification inviting applications which provided for regular appointment till the age of the superannuation, the Governing Council in its meeting held on 29-4-1997, resolved to rectify its earlier resolution with the clarification that appellant will hold the post till he attains the age of superannuation. The Government concurred with this resolution and accordingly notification dated 2-5-1997 (Annexure-F) was issued.

After almost more than three years of the initial appointment of the appellant as the Director of the Institute, one Dr. Vijaya Kalmankar filed a writ petition in W.P. No. 4739 of 1999 in the public interest domain before this Court seeking stay of the operation of the above referred resolutions dated 20-9-1996 and 2-5-1997 of the Governing Council with a prayer to fill up the post of Director in accordance with the Cadre and Recruitment Rules of the Institute. But the said writ petition was dismissed by the Division Bench on 2-8-1999 on the ground that public interest litigations are not maintainable in service matters since only aggrieved person can challenge the appointment.

Subsequently, on 3-9-1999 respondents 1, 2 and 3 filed joint writ petitions assailing the impugned appointment of the appellant by raising various pleas which have been allowed by the learned Single Judge by the impugned order. The learned Single Judge has accepted the contentions of the writ petitioners-respondents that appointment of the appellant was vitiated in law and as such void ab initio for two reasons, namely, (i) the very Constitution of the Selection Committee was contrary to the bye-laws; and (ii) the appellant should be deemed to have participated in the proceedings of the Governing Council dated 4-3-1996 in which recommendation of the Selection Committee was accepted and therefore the decision was hit by the doctrine of bias.

The learned Single Judge rejected the plea of maintainability of the writ petition as raised by the Governing Council, the Institute and the appellant based on gross laches and locus standi of the writ petitioners to challenge the appointment.

Sri Javali, learned Senior Counsel for the appellant, has vehemently assailed the reasonings and conclusions drawn by the learned Single Judge by placing reliance on the various judgments of the Supreme Court, some of which have been referred to by the learned Single Judge as well. Whereas, Mr. Subba Rao, learned Senior Counsel appearing for the contesting respondents, has, which is but natural, supported the conclusions drawn by the learned Single Judge. The Governing Council, as well as the State Government represented by Sri D''sa, learned Government Advocate, and the Institute represented by Sri Mr. M.R. Achar, learned Senior Counsel, have submitted that no illegality or irregularity resulting in vitiation of the appointment of the appellant has been committed at their end and that the learned Single Judge has manifestly erred in annulling the appointment as being void ab initio.

Keeping in view the pleadings of the parties, the view taken by the learned Single Judge and the rival contentions raised at the Bar, the following questions fall for our consideration.- (i) Whether the writ petition was maintainable at the instance of respondents 1, 2 and 3 as being persons aggrieved?

(ii) Whether this Court should have refused to exercise its writ jurisdiction on the ground of gross laches since admittedly the impugned appointment of the appellant to the post of Director was questioned after more than three years?

(iii) Whether the Governing Council of the Institute had acted in excess of its powers in constituting a Selection Committee comprised of three outside experts in place of the Committee prescribed in the Bye-law No. 12, resulting in vitiation of the entire process of selection to the post in question?

(iv) Whether as of fact the appellant had participated in the part of the proceedings dated 4-3-1996 of the Governing Council in which recommendations of the Selection Committee for his appointment was accepted?

(v) Whether on the facts and circumstances of the case, it can be inferred that the appointment of the appellant is vitiated on account of suspected bias?

CONCLUSIONS

Reg. Question No. (1).-So far as the 1st respondent is concerned, admittedly, he was one of the candidates for the post in question. Being an eligible candidate, he had appeared at the interview before the Selection Committee. But on appraisal of the comparative merits, the Selection Committee found the appellant to be more meritorious and thus recommended his name. Whereas, along with another candidate, the 1st respondent was placed in the waiting list. Certainly, the 1st respondent very well knew about the background in which the Selection Committee was constituted. Still, he consciously took a chance and appeared in the interview. Subsequently, having failed to secure appointment and that too after more than three years, joined hands with the 2nd and 3rd respondents to assail the appointment of the appellant which was not permissible on his part to do.

In the case of Madan Lal v State of Jammu and Kashmir, AIR 1995 SC 1088, it has been held that.- "It is now well-settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted".

(emphasis supplied)

Similar view, as noticed above, has been taken in the case of University of Cochin v N.S. Kanjoonjamma, AIR 1997 SC 2083, wherein it has been held that:

"In fact, the first respondent also has applied for and sought selection but remained unsuccessful. Having participated in the selection, she is estopped to challenge the correctness of the procedure".

In view of the law laid down by the Supreme Court in the above two cases, it was clearly impermissible on the part of the 1st respondent to question the appointment of the appellant. Apart from this, it is also a matter of record that as on the date of filing the writ petition i.e., 3-9-1999, the 1st respondent had already attained 52 years of age and therefore as per the Cadre and Recruitment Rules, he was ineligible for appointment to the post of Director even if any vacancy arises. Therefore, he cannot be said to be a person aggrieved by the appointment of the appellant because no benefit can accrue to this respondent even if the appointment of the appellant is found to be bad in law.

Coming to respondents 2 and 3, they had entered service of the Institute in 1982 and 1980 respectively. The 2nd and the 3rd respondents were promoted to the post of Professors in Radiology and Cardiology respectively in the year 1996. As per the Cadre and Recruitment Rules, the relevant part whereof has already been extracted above, for being eligible for appointment to the post of Director, the candidate must have the teaching experience of not less than 5 years in a post not lower in rank than the Professor or any other equivalent post. Admittedly, respondents 2 and 3 did not possess this essential eligibility for appointment to the post in question when the notification inviting applications was published on 11-12-1995 nor even on the date when the Selection Committee held interview on 19-2-1996.

In the case of R.K. Jain v Union of India, AIR 1993 SC 1769, it has been held that:

"In service jurisprudence it is settled law that it is for the aggrieved person i.e., non-appointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public spirited person".

Similarly, in the case of Gopabandhu Biswal v Krishna Chandra Mohanty, AIR 1998 SC 1872, the Supreme Court negatived right of maintaining a writ petition at the instance of the petitioner, who was not an applicant to the post, by holding that:

"At that point of time, these applicants had only a chance of promotion in future. This does not confer any legal right on these applicants and they cannot be considered as parties aggrieved by the impugned judgment. However, leniently one may construe the term ''party aggrieved'', a person not directly affected cannot be so considered. Otherwise for years to come, every person who becomes eligible for promotion will be considered a ''party aggrieved'' when the Tribunal interprets any Service Rule such as in the present case. Only persons who are directly and immediately affected by the impugned order can be considered as ''parties aggrieved'' under Section 22(3)(f) read with Order 47, Rule 1".

(emphasis supplied)

In the context of maintaining of a cause at the instance of the respondents before the Supreme Court in the case of Union of India v N.Y. Apte, AIR 1998 SC 2651, it was held that:

"In fact, the Tribunal has taken note of the same and observed that they have not earned eligibility for promotion to the cadre of MG-1 as they did not have to their credit five years of approved service in the grade as on that date. Thus, when the respondents approached the Court they could not even claim that they had a chance of promotion at that time. The writ petition ought not to have been entertained at their instance".

(emphasis supplied)

In the present case as well, admittedly, the 2nd and 3rd respondents were not eligible for appointment to the post of Director at the relevant time therefore, they cannot be said to be ''aggrieved persons'' with the appointment of the appellant to the post of Director of the Institute. Accordingly, the learned Single Judge has erred in holding that the writ petition was maintainable at their instance to assail the appointment in question. In view of the law declared by the Supreme Court, irrespective of merits of contentions raised regarding validity of the appointment, the writ petition itself was clearly not maintainable at the instance of the contesting respondents.

Reg. Question No. 2.-As noticed that, the appellant was appointed to the post of Director pursuant to a resolution of the Governing Council dated 4-3-1996. Subsequently, by resolution dated 29-4-1997 the Governing Council rectified its earlier resolution by declaring the appointment to be one on regular basis being till upto the age of superannuation of the appellant since this is what the original resolution and consequent notification inviting applications provided for. It is not in dispute that all the three respondents, who had filed writ petitions, out of which the impugned order arises, was filed on 3-9-1999, had the full knowledge about the entire process of selection and the appointment of the appellant as and when it was made and the process which was adopted for the same. Still, they waited for more than three years in assailing the impugned appointment on the purported ground of irregularity in Constitution of the Selection Committee and alleged participation of the appellant in the meeting of the Governing Council in which the appointment of the appellant was approved.

In the case of Roshan Lal v International Airport Authority of India, AIR 1981 SC 597, it has been held that:

"The respondents were appointed as Airport Officers in 1975 and the present writ petitions were filed in 1978. We do not think we will be justified in reopening the question of the legality of the appointment of respondents as Airport Officers several years after their appointment".

In the case of Bhoop Singh v Union of India, AIR 1992 SC 1414, it has been held that laches by itself is a ground for refusal of the reliefs irrespective of merit of the claim.

In the present case, the contesting respondents have not come out with any acceptable explanation justifying the delay in approaching this Court for the reliefs sought for. Sri Subba Rao, learned Senior Counsel appearing for the contesting respondents, has merely submitted that they did not find it necessary to challenge the same earlier inasmuch as public interest litigations in W.P. No. 4739 of 1999 and W.P. No. 21801 of 1999 were pending consideration before this Court questioning the validity of the appointment of the appellant and they were waiting for the result of the same, but since the same was dismissed as not maintainable, therefore, they found it appropriate to move this Court by themselves for annulment of the appointment of the appellant. The explanation offered seems to be somewhat amusing. It sounds as if the contesting respondents were moving in a calculated manner to frustrate the appointment of the appellant through successive litigations. If this be taken as a fact, then one has to certainly deprecate it.

Accordingly, we hold that the writ petition filed by the contesting respondents was not maintainable under Article 226 of the Constitution of India on the ground of gross laches as well.

Reg. Question No. 3.-We have already noticed the relevant provisions contained in the Rules and Regulations of the Institute as well as the bye-laws and Cadre and Recruitment Rules framed by the Governing Council pursuant to the powers conferred on it under the Rules and Regulations. It is not in dispute that the Governing Council is the Appointing Authority for the post of Director. It is permissible for the Governing Council to make appointment on the post either on regular basis or on contract basis for a period of five years. In the present case, the Governing Council had decided to make the appointment to the post of Director of the Institute on regular basis instead of on contract basis for a fixed period.

Under Rule 27 of the Rules and Regulations, the Governing Council has been permitted to form committees consisting of members and non-members for any purpose it considers necessary on such terms and conditions as it may fix. Sub-rules (4) and (3) of Rule 10 of the Rules and Regulations empower the Governing Council to make bye-laws for regulation of the business of the Institute and to amend or alter the same subject to the conditions that it shall not be inconsistent with the provisions of the Act and approval of the State Government.

Section 2(a) of the Act defines governing body to mean the Governors, Council, Directors, Committee, Trustees or other body to whom, by the Rules and Regulations of the Society, the management of its affairs is entrusted. Section 6 of the Act provides for requirements with respect to memorandum and make all Rules and Regulations of the Society. It reads as under:

Requirement with respect to memorandum.-(1) The memorandum of Association of every Society shall State.

(2) There shall be registered with the memorandum of Association, the Rules and Regulations of the Society, which shall contain provisions relating to admission of members, general meetings, proceedings at such meetings including voting by members, the governing body and proceedings of meetings of the governing body:

Provided that save as otherwise provided in this Act, no rule or regulations of a Society shall exclude any member from being entitled to vote.

Sections 9 and 10 of the Act prescribe procedure for alteration of the memorandum of Association and change of name, Rules and Regulations respectively. Under sub-section (2) of Section 6 of the Act, the Rules and Regulations of the Society are required to contain the provisions relating to admission of members, general meetings, proceedings at such meetings including voting by members, the governing body and the proceedings of the meeting of the governing body. Further, it is the governing body, Governing Council in the present case, which is vested with the power of management of the Society.

Coming to the Rules and Regulations of the Society, it empowers the Governing Council to make bye-laws for carrying out the objects of the Institute. Pursuant to these powers, the Governing Council had framed bye-laws inter alia providing for Constitution of the Selection Committee under Bye-law No. 12, as already extracted above. But keeping in view the necessity of having a person of eminence to hold the post of Director whose merits should be assessed and evaluated by Selection Committee of three external experts, the Governing Council by its resolutions dated 20-2-1995 and 4/5-12-1995 resolved to have Selection Committee of three above named external experts. This resolution was duly approved by the State Government.

Bye-laws framed by the Government Council are certainly not Rules and Regulations within the meaning of the Act. It is for the simple reason that the Rules and Regulations are to be made along with the Memorandum of Association and are required to be registered under Section 6 of the Act making provisions on the aspects referred to in sub-section (2) of Section 6 of the Act. Bye-laws in question have been framed by the Governing Council pursuant to the powers conferred on it under the Rules and Regulations and as such the bye-laws are subordinate to the Rules and Regulations and making of its amendments has to be governed by the stipulations made in the Rules and Regulations and not in the Act. The above aspect of the matter has been earlier considered by a learned Single Judge of this Court in the case of Dr. HP. Prabhuswamy v Sri Jayadeva Institute of Cardiology, Bangalore and Others, 1997(5) Kar. L.J. 673, wherein it has been held that:

"Section 6 of the Societies Registration Act, deals with the requirements with respect to memorandum of Association. Sub-section (2) of Section 6 deals with the registration of memorandum. It states that along with the memorandum of association, the Rules and Regulations of the Society containing provisions relating to admission of members, general meetings, proceedings at such meetings including voting by members, the governing body and the proceedings of meeting of the governing body shall also be registered. Section 10 deals with the amendment of such Rules and Regulations registered along with the memorandum of association, sub-section (2) of Section 10 of the Societies Registration, in my considered view, is not attracted. That, according to clause (3) of Regulation 10 of the Jayadeva Institute of Cardiology Rules and Regulations, 1983, the Governing Council shall have the powers to add, to amend, alter the Rules and Regulations of Bye-laws of the Society consistent with the Societies Registration Act, and subject to approval of the Government of Karnataka and from the bye-laws of the Institute it is clear that clause (3) of Regulation 10 of the Institute would not cover the Cadre and Recruitment Rules".

From the above discussions, it is quite clear that the Governing Council has the power to form committees for any purpose it finds it necessary and it has the power to amend bye-laws subject to approval of the State Government. In the present case, by resolution dated 4/5-12-1995 it had decided for the reasons stated therein to constitute a Selection Committee of three external experts for recommending name of a suitable candidate for appointment to the post of Director. Even if the resolution does not speak about the amendment of Bye-law No. 12 providing for Constitution of Selection Committee in a particular manner but decision of the Selection Committee really tentamounts to amendment of the said bye-law, for securing the best candidate for appointment to the post. No. exception can be taken either in law on facts in adopting such a course by the Governing Council. It is not the case of the contesting respondents that the Selection Committee constituted of external experts was affectuated with mala fides in order to help the appellant in securing the appointment in any impermissible manner. This being the situation, in our opinion, the learned Single Judge was not correct in holding that the Constitution of the Selection Committee by the Governing Council as approved by the State Government was an impermissible exercise rendering the entire process of appointment to be a nullity. We find no fault with the Governing Council in constituting the Selection Committee in question.

Reg. Question No. 4.-It is a matter of record that based on the recommendations of the Selection Committee comprised of three experts, the Governing Council in its meeting held on 4-3-1998 (Annexure-C) resolved to accept its recommendation, which was subsequently approved by the State Government as well. On that day, the Governing Council had only four items on its agenda. The proceedings at Annexure-E show that in all 11 members had attended the meeting which included the Chief Minister of the State, Minister for Medical Education, the Additional Chief Secretary and Principal Secretary, Finance Department, Principal Secretary to Chief Minister; Secretary, Planning Department; Secretary, Health and Family Welfare Department and the appellant as an ex officio member, being the Medical Superintendent of the Institute, the Managing Trustee of the Institute, Director of Health and Family Welfare Services and one Sri B.L.S. Murthy.

The relevant part of the resolution which concerns the present dispute is to the following effect.-

"The Selection Committee made clear recommendation to appoint Dr. N. Prabhu Dev, Professor and Head of the Department of Cardiothoracic Surgery of Sri Jayadeva Institute of Cardiology for the post of Director. Dr. N. Prabhu Dev is eligible for appointment as Director as he has necessary qualification. The Governing Council also noted that the Selection Committee has also recommended two other internal candidates i.e., Dr. Kumar and Dr. Yavagal to be kept in the panel in that order. After detailed discussion, the Governing Council unanimously resolved to appoint Dr. N. Prabhu Dev as Director of Jayadeva Institute of Cardiology for a period of three years from the date of his reporting for duty and the Secretary I to Government, Health and Family Welfare Department was authorised to issue appointment letter as soon as the proceedings were approved by the Chairman".

The contesting respondents in order to make out a case of bias had stated in the writ petition that.-

"The second lapse is that as per the proceedings of the Governing Council held on 4-3-1966 (Annexure-C), the 3rd respondent was one of the Members of the Governing Council who has participated in the proceedings. It is thus absurd that an individual whose very appointment was being discussed for according approval was himself present therein and was a part of the decision making body. Thus, the whole selection proceedings and subsequent approvals and appointment would not stand the test of law".

In order to controvert the above factual assertion the appellant in his Statement of Objections filed before the learned Single Judge had categorically stated that:

"The contention that the third respondent participated in the proceedings in which he was himself appointed as the Director of the Institute is not true. As a Superintendent of the Institute, he was nominated as the Member of the Council but as the Governing Council was considering the appointment to the post of Director, he did not participate in the proceedings".

From the above pleadings, it is clear that the allegation of the contesting respondents regarding participation of the appellant in that part of the Governing Council proceedings in which the decision regarding appointment of the appellant was taken is not based on their personal knowledge but was inferred by reading of the proceedings as recorded in the Annexure-C.

Sri Jawali, learned Senior Counsel appearing for the appellant, has submitted that though the appellant at the commencement of the proceedings was present as ex officio member but when the item regarding his appointment came up for consideration he went out of the meeting. The statement made by the appellant on oath is based on his personal knowledge which could not be rebutted by the contesting respondents with reference to any convincing material. Therefore, at this distance of time, the writ Court could not have conclusively held that the appellant was guilty of asserting falsehood regarding his non-participation in the proceedings when item of his appointment was being deliberated by the other members of the Governing Council. We find no ground to disbelieve the statement of the appellant since the same has not been refuted or contradicted by the Institute or the Governing Council or the State Government, who are party to the present proceedings and have been well-represented.

Reg. Question No. 5.-Though we have already taken the view that there was no conclusive material to show that the appellant had at all participated in the deliberations of the governing Council when the item regarding his appointment was being discussed and recommendations of the Selection Committee accepted, we would still like to examine the plea of bias as raised before the learned Single Judge.

For the above purpose, we will presume that at the time the matter regarding appointment of the appellant was being considered by the Governing Council he was also present there. Minutes of the proceedings which have been placed before us speaks about the views expressed by some of the members of the Governing Council. The proceedings does not show that the appellant had in any way participated. Above all, the Governing Council was headed by non-else then the Chief Minister of the State and other highly placed constitutional and executive authorities. Moreover, the decision of the Governing Council, which was constituted by 11 members, was admittedly unanimous. Admittedly, there was no material to discard or not to accept the recommendation of the Selection Committee. In normal course, the Governing Council could not have any option other than to accept the recommendation of the Selection Committee comprised of three external experts, which was constituted by the State Government in accordance with the decision of the Governing Council itself. Therefore, it was highly improbable that mere presence of the appellant, even if it be so presumed, could have in any way affected the decision regarding his appointment.

One of the rules of natural justice which has been judicially accepted in order to secure justice and prevent unjust, arbitrary and biased decision is nemo debet esse judex in propria causa sua i.e. No man can be a Judge in his cause.

Bias may arise under varying circumstances. It may arise out of pecuniary interest, personal interest, because of blood relationship, marital relationship, friendship or hostility.

In the case of A.K. Kraipak v Union of India, AIR 1970 SC 150, the Constitution Bench of the Supreme Court has extensively dealt with the law relating to rule of bias. In this case, the allegation was that one Naqishbund, who himself was a candidate for selection to the Indian Forest Service, was made one of the members of the Selection Board. Keeping in view this fact, the Supreme Court examined the law relating to bias by holding that:

"The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore, what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct".

(emphasis supplied)

In the case of S. Parthasarathi v State of Andhra Pradesh, AIR 1973 SC 2701, the question passed by the Supreme Court was as to whether a real likelihood of bias existed is to be determined on the probabilities to be inferred from the circumstances by Court objectively, or, upon the basis of the impressions that might reasonably be left on the minds of the party aggrieved or the public at large? The Supreme Court proceeded to answer the question by holding that:

"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 that justice must not only be done but seem 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 enquiry, 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 likely that the Inquiring Officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision (see per Lord Denning, M.R. In Metropolitan Properties Company (F.G.C.) Limited v Lannon, (1968)3 WLR 694)".

Applying the above parameters to the facts of the present case, we find it difficult to persuade ourselves that in the facts of the present case, even if the plea of the contesting respondents regarding presence of the appellant in the meeting is accepted, still it can at all be reasonably inferred that there was any likelihood of the appellant influencing the decision of the Governing Council thereby giving rise to real likelihood of bias. The allegation of likelihood of bias seems to be based more on surmises and conjunctures than on that of a prudent man''s approach. We for ourselves cannot even conceive that appellant could have influenced the members of the Governing Council like the Chief Minister and other Ministers or the Senior Secretaries of the Government by his mere alleged presence. On the other hand, if such a presumption is permissible to be drawn, then it can also be reasonably presumed that it could have been achieved even by remaining away from the meeting. But to our mind it is more appropriate to remain alive to the legal presumptions which always favour the regularity than the irregularity. Accordingly, we hold that the decision of the Governing Council could not have been held as being tainted with bias and thus illegal ab initio.

For the aforesaid reasons, we find it difficult to agree with the view taken by the learned Single Judge. Accordingly, the impugned order is set aside. We are also of the opinion that respondents 1, 2 and 3 appears to have filed writ petitions questioning the appointment of the appellant with mala fide intention only to prejudice his right with some unwarranted motives and not to ventilate or exert any legally admissible right of their own. Accordingly, we award a sum of Rs. 15,000/- as cost to be paid equally by the said respondents to the appellants.

The writ appeals are accordingly allowed as above.