Ravi vs The Karnataka University and Others

Anand Byrareddy, J.—The facts of the case are:

The Petitioner is a Post-Graduate in M.A. Sociology and belongs to Scheduled Tribe category. He has passed National Educational Test (hereinafter referred to as ''the N.E.T.'' for brevity) conducted by the University Grants Commission and the elibility test for lecuterership called as S.E.T. conducted by the University of Pune. The Petitioner has registered for a Ph.D. Degree in Sociology under the faculty of Social Science and is yet to complete the Doctorate. Respondent No. 1 is a University governed by the provisions of the Karnataka State Universities Act, 2000 (hereinafter referred to as ''the Act'' for brevity). The Respondent No. 1, by a Notification dated 5.10.2002 published in the Daily Newspaper ''Samyukta Karnataka'', invited applications for several posts, including two posts of Lecturer in Sociology. One post of Lecturer in Sociology at the P.G. Centre, Belgaum was reserved for the Scheduled Caste category and one post of Lecturer in Sociology at Dharwad was reserved for Scheduled Tribe category. In terms of the Nofication, a candidates for the post of Lecturer is required to have passed N.E.T. conducted by the University Grants Commission. It is also stated that such of those who have obtained M. Phil. degree on or before 31.12.1993 or who have secured Ph.D. degree before interview, would get exemption from obtaining N.E.T. Certificate. It is the Petitioner''s case that Respondent No. 3 and six other candidates applied for the post of lecturer reserved for Scheduled Tribe category. In terms of Section 53 of the Karnataka State Universities Act, 2000 (hereinafter referred to as ''the Act'' for brevity), there shall be a Board of Appointment, and the Board of Appointment would consist Vice Chancellor as the Ex-officio Chairman and three experts to be nominated by the Government from out of the panel of the University Grants Commission. The Chairman of the Departmental Council or a professor in the same Department - one professor from another University in the State to be nominated by the Chancellor and the Registrar of the concenred Univesity was to be the very Secretary of the Board. Respondent No. 2 is a Professor in Sociology Department in the Mangalore University. He was nominated as one of experts in terms of Section 53(2)(b) of the Act. It is the Petitioner''s case that interviews were conducted on 17.1.2003. The petttioner Respondent No. 3 and five other candidates attended the interview. It is contended that the Board of Appointment consisted of six persons including the Member Secretary on the date of interview and the person to be nominated u/s 53(2)(b)(iv) did not attend the selection.

It is the Petitioner''s case that Respondent No. 3 had not passed the N.E.T., but he had secured Ph.D. Degree. It is the allegation of the Petitioner that the Petitioner had registered for Ph.D. degree. He had worked for more than five years in securing the degree from Mangalore University and that Respondent No. 2 was his guide during the relevant period and hence, was closely associated with the said Respondent. This is a presumption that would straight away arise having regard to the close association for a period of five years. It is the Petitioner''s case that he was not aware of the fact that there was such a relationship as between the Respondent No. 2 and Respondent No. 3 at the time of interview. The Respondent No. 1 has published provisional list of selected candidates, wherein Respondent No. 3 had been selected for the post of Lecturer in Sociology reserved for Scheduled Trie candiates and the Petitioner was kept on a waiting list. The Petitioner further alleges that the candidature of Respondent No. 3 was consider though he had not passed the N.E.T. and this has been overlooked on the footing that the Respondent No. 3 had obtained a Ph.D. Degree and was entitled for exemption. It is the Petitioner''s plea that he has obtained better marks at the interview except as awarded by Respondent No. 2. And, therefore, it is the Petitioner''s case that Respondent No. 3 has been able to score over the Petitioner only on account of the influence that was present by virtue of the relationship as between the Respondents Nos. 2 and 3 and since the Petitioner was not aware of this relationship, as already stated, he had not raised any objection in this regard, and it is only after coming to know the relationship, he had submitted a representation to the Registrar, Karnataka University at Dharwad, on 21.2.2003. Inspite of the same, no action was initiated and it is now learnt by the Petitioner that the select list prepared by the Board of Appointment was submitted to the Syndicate of the University and it has been ratified. It is in all possibility that the Respondent No. 3 would be appointed to the post of Lecturer in Sociology. He would submit that the entire process of selection, because of the participation of the Respondent No. 2, stands visited in so far as the Petitioner and the Respondent No. 3 are concerned and hence, the Petitioner is before this Court.

The Counsel for the Petitioner, would argue, that the apprehension which is well-founded, having regard to the sequence of events, that the long relationship of guide and scholar as between the Respondents Nos. 2 and 3, had a subtle and telling influence in the selection process, which was unknown to the Petitioner, and it is only upon learning of this circumstances that the Petitioner is before this Court. He would submit that in the matter of selection, impartiality should not only be adhered to strictly, but is also ought to be seen to be present, And, the very presence of the Respondent No. 2 as a Member of the Board of Appointment in the interview amd resulting in the Respondent No. 3 being selected, the entire process is vitiated.

He places reliance on the judgment in the case if State of West Bengal and Others Vs. Shivananda Pathak and Others, , which pertains to a case involving the promotion to the posts of Inspectors of Minimum Wages and Ors. who had filed writ petitions, which were allowed. The same was challenged by the Respondent before a Division Bench of the very Court. The appeal was allowed and fresh directions were issued. After two years, the very parties who had earlier filed the writ petitions, filed yet another writ petition, seeking arrears of salary and allowances. The writ petition was disposed of by another Single Judge. The same having been challenged before a Division Bench, of which one of the judges was learned Single Judge who had decided the writ petition of the very parties in the first instance and whose order had been modified in appeal, proceeded to pass orders inspite of the above position being brought to the attention of the judge, which had the effect of reverting the parties to the position at the stage of the final order in the first writ petition. Even seeking to overcome the order passed in appeal by a Division Bench earlier. This order was challenged before the Supreme Court. The Supreme Court, while dealing with the question whether there was judicial obstinacy and whether judicial obstinacy could be treated as a form of bias, after referring to its earlier decisions, held that the maxim Nemo debet esse judex in propria sua causa and the other principle based on the often quoted dictum of Lord Hewart C.J. in R. v. Sussex, JJ. ex.p. Medical certificate. Carthy (1924)1 K.B. 256, that:

It is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.

would constitute the well-recognised Rule Against Bias. And, further held that:

Bias, as pointed out earlier, is a condition of mind and, therefore, it may not always be possible to furnish actual proof of bias. But the Courts, for this reason, cannot be said to be in a crippled state. There are many ways to discover bias; for example, by evaluating the facts and circumstances of the case of applying the tests of "real likelihood of bias" or "reasonable suspicion of bias". De Smith in Judicial Review of Administrative Action, 1980 Edn., 262, 26, has explained "reasonable suspicion" tests looks mainly to outward appearances while "real likehood" test focuses on the Court''s own evaluation of the probabilities.

And, applying these principles, the Supreme Court held that although the judgment passed by the Single Judge in the first instance, in the above facts, in which he had given a direction that the Respondents should be promoted with effect from a particular date, was set aside. The same Judge, sitting in a Division Bench, in a subsequent proceeding between the same parties, having declared that the Respondents shall be treated to have been promoted with effect from the same date as earlier ordered by him while sitting single, though such a prayer was not forthcoming, was a crude attempt to revive the directions passed by him in the first instance and amounted to rewriting a judgment which was already overruled and the Court held that the Bench was not competent to do so. The Court expressed, that it would have been appropriate for the concerned Judge to have disassociated himself from that Bench in keeping with high traditions of the institution and to give effect to the rule that "justice should not only be done, but it should manifestly be seen to have been done", apart from sitting in appeal, though collaterally, over his own judgment.

Per contra, the Counsel for the Respondent No. 1 Shri N.B. Bhat, would contend, that the Board of Appointment was constituted in terms of the provisions of the Act. The experts on the Board were nominated by the Chancellor and the Respondent No. 3 was found to be more meritorious by the Board. The Petitioner had secured 55.5% in P.G. Degree whereas the Respondent No. 3 had secured 66.8% and also had obtained Ph.D. in Sociology and on comparative merit, the Respondent No. 3 was found to be more meritorious with regard to other academic qualifications. Amd, on facts. the appointment cannot be faulted on the grounds of bias. The petitioner''s allegation that Respondent No. 2''s influence on other members of the Board and the Respondent No. 2''s personal relationship with Respondent No. 3, are not relevant. The relationship as between Respondents Nos. 2 and 3, does not by itself lead to the inference of bias. If such an inference would be incorrect and unfair, the further circumstance that this allegation of bias has come after it was found that Respondent No. 3 was selected, is material and therefore, the petition does not warrant consideration, as it is clearly a case of heart burn. The impartiality and objectivity of the Board in adhering to the provisions of the Act in the entire process, cannot be faulted. In any event, the Respondent No. 2 was not the only member of the Board and as admitted by the Petitioner himself, there were five others on the Board at the time of the interview. The Respondent No. 3 has in fact been appointed by an order dated 11.3.2003. He would further submit that the long line of cases on the aspect of bias, starting with A.K. Kraipak and Others Vs. Union of India (UOI) and Others, , would leave no doubt that the facts and circumstances of the present case do not warrant inference ob bias at all and therefore, the petition would have to be dismissed.

The Counsel for the Respondent No. 3 Shri Satish M. Doddamani, would argue, while reiterating the relative merit as between the Petitioner and Respondent No. 3, that there has been a fair selection of Respondent No. 3 on his sheer merit and it cannot be alleged that it was only on account of influence brought about by Respondent No. 2 since he had acted as a guide for Respondent No. 3 at an earlier point of time, he would point out a further circumstance that the Petitioner himself had completed his post graduation from the Karnataka University. Peculiarly, the Chairman of the Department, who was a member of the Board, was the guide of the Petitioner during his work for the post-graduate degree. And, going by the argument of the Petitioner, it is strange that the Petitioner did not seek to raise any question when the said member had participated in the selection process. Therefore, the Petitioner could not lead a different yard-stick for Respondent No. 3. The relationship of guide and scholar need not necessarily therefore be considered as a relationship, which necessarily should bring a personal relationship, where the guide should take an undue interest in the scholar and he relies on a judgment in the case of Dalpat Abasaheb Solunke and Others Vs. Dr. B.S. Mahajan and Others, which involved the case of appointment of the Appellant, wherein selection of candidates was questioned on the very ground, namely, that the process of Selection Committee and the candidates were guides and scholars respectively. The Supreme Court, while negativing the contention, held that it is not understandable as to how the fact that the members of the Selection Committee, were guides when the Appellant was a post-graduate, would influence the decision in selecting him or would vitiate the selection made, and observed, that it is possible that the members of the Selection Commitee would have been guides for many who apeared for interview as senior teachers in the faculty and since they have to be drawn from the teaching faculty and most of them have to interview candidates who were at one time or the other their students - that cannot disqualify them from being members of the Selection Committee, and has discarded the reasoning of the High Court on this footing. And, therefore, would submit, that the petition warrants dismissal.

On these rival contentions, the facts of the case not being seriously disputed, the law as laid down in several decisions on the question of bias, is examined.

In Manak Lal Vs. Dr. Prem Chand, : This was a case where professional misconduct, was alleged against an Advocate. The matter was referred to a Tribunal nominated by the Chief Justice of the High Court of Rajasthan - the Tribunal found that the Advocate was guilty of professional misconduct. Before the Court the challenge was to the ery constitution of the Tribunal by the Chief Justice of the High Court. The point arose in this way - namely the Tribunal consisted of three members - one of whom had filed vakalat on behalf of the Respondent in the proceedings, at an earlier point of time in a criminal case and therefore, was disqualified and this was a fatal infirmity in the constitution of the Tribunal. The Supreme Court held that inv dealing with the cases of bias, attributed to members constituting Tribunal - it could be pecuniary interest and if prejudice is so attributed, pecuniary interest, however small it may be, would wholly disqualify a member from acting as a judge. But in a case where bias is suggested, it becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of litigant or the public at large, a reasonable about the fairness of administration of justice. And that, it would be a question of fact to be decided in each case.

In A.K. Kraipak and Others Vs. Union of India (UOI) and Others, , the facts of the cae are that the Acting Inspector General of Forests of J and K State, who was a candidate for selection to the Indian Forest Service, was himself a member of the Selection Board to prepare a list of officers on the State Forest Service. The said officer did not however sit in the Selection Board at the time when his name was considered by the Selection Board. He was however placed at the top of the list of the list of selected Officers. This having been challenged, the Supreme Court held that the dividing line between an administrative board and a quasi-judicial board is quite thin. The Supreme Court held that the inclusion of the said officer as a member of the Board was improper, as he was one of the persons to be considered for selection. Even if he did not participate in the deliberation of the Committee when his name was considered, the fact that he was a member of the Board, must in fact, have an effect on his being on his being member of the Selection Board and the real question is not whether he was biased, for, it is difficult to prove the state of mind of a person. There cannot be reasonable likelihood of bias and a mere suspicion of bias is not sufficient in deciding the question of bias. Human probabilities and ordinary course of conduct course of conduct must be taken into consideration.

G. Sarana Vs. University of Lucknow and Others, : which was decided by a three-Judge Bench of the Supreme Court and that was a case where the Appellant had applied for the post of a Professor in the University of Lucknow. After having appeared before the Selection Committee and on learning of his failure to get appointed, the Appellant had approached the High Court pleading bias of two or three experts in the Selection Committee, which consisted of five members. It was his allegation that the close relationship of two experts with the successful applicant and instances of hostility towards him, the High Court was not impressed and dismissed the petition. The High Court had held that the Appellant having submitted to the jurisdiction of the Selection Committee, he could not be permitted to turn round and question the constitution of the Committee at a later point of time. The Supreme Court held that the question was not whether a member of an administrative board, while discharging functions, was biased, as it is difficult to prove the mind of a person and held, while following the reasoning in A.K. Kraipak''s ase supra, that what has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased and that in a group deliberation and decision like that of a Selection Board, the members do not functions as computers. Each, member of the group or Board is bound to influence the toehrs, more so if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner. But however, the Court held that since the Appellant before it had appeared in the interview with the full knowledge of the relationship of the members of the Board with other candidates, it is not open for him to challenge the process after having failed to qualify and therefore it created a bar of waiver against him.

J. Mohapatra and Co. and Another Vs. State of Orissa and Another, : involved the case of members of an Assessment Sub-Committee, who themselves were authors of books which were submitted to the Committee for selection. The Supreme Court held that these persons were interested in the matter of selection of books. Whether or not the other members of the Committee were actually influenced by the fact that the books under consideration were written by one of their members, would be a matter impossible to determine. It was therefore not the actual bias in favour of the author member that is material, but the possibility of such bias, which existed. And therefore, it was improper for the author-member to be a member of the Sub-Committee. The Supreme Court also laid down that the doctrine of necessity would be an exception to the rule that no man should be a judge in his own cause. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorised to adjudicate or if a quorum cannot be formed without him. In such cases, the Supreme Court held that the principles of natural justice would have to give way to necessity. And this doctrine would extend even to quasi-judicial and administrative matters.

Ashok Kumar Yadav and Others Vs. State of Haryana and Others, : This is a case where selection was being made not by any Selection Committee constituted for that purpose, but by the Public Service Commission a constitutional authority set up under Artilces 315 or 316 of the Constitution of India and a close relative of a member of the Public Service Commission was appearing for an interview before the Commission, then the related member need not withdraw from the entire selection process when two or more members of the Commission are holding a viva-voice examination. They are functioning not as individuals, but as a Public Service Commission. But, however, the Supreme Court held that the related member must withdraw from participation in the interview of that candidates and must not take part in any discussion in regard to the merits of that candidates and even the marks or grades given to that candidates would not be disclosed to him. And, after nothing that in that case on hand before the Supreme Court, two members of the Public Service Commission did withdraw from the interview, when the interview of their respective relatives was held and that they did not take part in discussion in regard to merits of their relatives and that the marks or grades obtained by them were also not disclosed to them, the Court held that there was no infirmity touching the selections made.

Jaswant Singh Nerwal Vs. State of Punjab and Others, : Wherein the Supreme Court has reiterated that it is not unusual for candidates related to members of the Service Commission and Selection Committees to seek employment. In such a situation the practice generally in vogue is for the member concerned to excuse himself when the particular candidate is interviewed and such a selection is beyond challenge, unless, of course, it is malafide.

State of Bihar and Another Vs. P.P. Sharma, IAS and Another, : While dealing with a case challenging the criminal investigation on the ground of violation of Article 21 of the Constitution of India, and on the objection as to bias on the part of the Investigating Officer, the Supreme Court held that such an objection must be raised at the earliest and if investigation is allowed to be completed, the objection would be deemed to have been waived and it would not be open to raise the objection belatedly.

Election Commission of India and another Vs. Dr. Subramanian Swamy and another, : The Respondent had filed a petition before the State Governor, alleging that the then Chief Minister had incurred a disqualification of being a member of Legislative Assembly under Article 191(1)(e) of the Constitution read with Section 9-A of the Representation of People Act, 1951. The then Chief Minister had moved two writ petitions before the High Court for a writ of prohibition against the Chief Election Commissioner not to deal with the petition forwarded to him by the Governor, as it was her reasonable apprehension that he was biased in favour of the Respondent. A Single Judge as well as a Division Bench of the High Court, concurrently found, that having regard to the close and intimate relationship between the Respondent and the Chief Election Commissioner, apart from the fact that the former''s wife was the latter''s lawyer in a damages suit filed by him in Bombay, the apprehension of bias in the mind of the Chief Minister, could not be said to be misplaced. The Chief Election Commissioner contended before the Supreme Court that the decision of the Election Commission is must for the Governor to decide the issue and under the Scheme of Article 324 of the Constitution, the Election Commission is a must for the Governor to decide the issue and under the Scheme of Article 324 of the Constitution, the Election Commission must comprise the Chief Election Commissioner as its Chairman if it is a multi-member body and that it cannot be a properly constituted Election Commission without its Chairman and hence, participation in the decision making could not be excused and must be permitted on the doctrine of necessity. The Supreme Court held that the proper course to follow would be for the Chief Election Commissioner to call a meeting of the Election Commission to adjudicate on the issue of disqualification of the Chief Minister and after calling a meeting he should act as the Chairman but then must recuse himself by annoucing that he would not participate in the formation of opinion. If the two Election Commissioners reach an unanimous opinion, the same should be communicated by the Chief Election Commissioner to the Governor. If the two Election Commissioners do not reach an unanimous decision in the matter of expressing their opinion on the issue referred to the Election Commission, the doctrine of necessity would compel the Chief Election Commissioner to express his views, so that the majority opinion could be communicated to the Governor to enable him to take a decision in accordance therewith and held that the law permits certain things to be done as a matter of necessity, which would otherwise not countenance on the touch-stone of judicial propriety. The doctrine of necessity makes it imperative for the authorities to decide and considerations of judicial propriety must yield.

Having regard to the position of law as emanating from the above decisions and having regard to the admitted facts and circumstances of the present case, the fact that the Respondent No. 2 was the guide of Respondent No. 3 for several years, could not be said to be immaterial as it was incumbent on Respondent No. 2 to disclose this relationship and as laid down by the several judgments of the Supreme Court above, the said Respondent ought to have withdrawn from the interview. As it is not the actual bias which requires to be established in such circumstances, it is the possibility and the likelihood of such bias which is material as is laid down by the Apex Court. The contention that the Petitioner was a scholar under another member of the Board, who was his guide during the period that he had undertaken post-graduate studies, would also have required that member to have disclosed the said relationship. However, this by itself would not justify the participation of Respondent No. 2 in the interview of Respondent No. 3 as a member of the Board. The contention of the Petitioner that he was not aware of the relationship as between Respondent Nos. 2 and 3 is concerned, this not seriously disputed in order that the plea of waiver could be urged against the Petitioner.

In the case of Dalpat Abasaheb Solunke and Others Vs. Dr. B.S. Mahajan and Others, , which is a case relied upon by the Counsel for the Respondent No. 3, the law as settled by the Supreme Court in A.K. Karaipak''s case supra, which has been consistently followed, has not been considered. And therefore, it would have to be held, as dealing with the facts and circumstances, on the basis of which alone, the Supreme Court has decided the said case, as there is no reference to any of the earlier judgments of the Supreme Court, which have been referred to herein-above. Accordingly I hold that Respondent No. 2 ought to have disclosed the relationship as between himself and Respondent No. 3 and he ought to have recused himself from the panel during the time of the interview of Respondent No. 3. So also would have been the case in so far as the guide member of the Petitioner is concerned, who was on the panel.

Accordingly, the writ petition is allowed. The appointment of Respondent No. 3 is held to be invalid and the Respondent No. 1 is directed to constitute a Board of Appointment for selection to the post of Lecturer in Sociology reserved for Scheduled Tribe category. Reserving the right of the Petitioner and Respondent No. 3, to appear at the fresh interview for the said post and to select a candidate, as per the select list.