JUDGMENT
G. Bikshapathy, J.
1. The matter relates to appointment of selection of Indian Administrative Service (I.A.S) under the provisions of India Administrative Service Act (Appointment by Selection) Regulations, 1997. The writ is directed against the orders passed by the Central Administrative Tribunal, Hyderabad in OA No. 87 of 2000.
2. Both the petitioners were initially selected by the Andhra Pradesh Public Service Commission in Group-I Service and appointed in the Co-operative Department. The 1st petitioner was appointed in 1977, while the 2nd petitioner was appointed in 1979. They were appointed in the cadre of Deputy Registrars of Co-operative Societies, subsequently they were promoted to higher posts from time, to time. At the relevant time, the 1st petitioner was holding the post of Additional Registrar, while the 2nd petitioner was holding Joint Registrar of Co-operative Societies.
3. It is the case of the petitioner that they are maintaining excellent record of service through out and they are eligible for selection to IAS Cadre under the provisions referred to above. It is their case that for selection to IAS for the year 2002, the service data of the Officers maintained outstanding track record was called for. Selections were conducted by the selection committee constituted under the Regulations on 27th, 30th and 31st December, 2002. The grievance of the petitioners is that the selection process adopted by the selection committee was not in accordance with the provisions of the Rules. In that, one of the member of the selection committee Mr. Arjun Rao, the 6th respondent herein has participated in the selection process only in respect of the candidates in whom he was interested namely, the respondent Nos. 9 to 13. The said Mr. Arjun Rao did not interview the other candidates. Thus, there was no proper evaluation of the respective merits of each candidates by the Committee members. Hence, the selection is vitiated on account of the procedural irregularities in the selection process. It is stated that in all 29 persons were interviewed for 5 vacancies and since the procedure followed is irregular, the selection process has to be declared as invalid.
4. The learned Central Administrative Tribunal, however, by an Order dated 20-7-2003 dismissed the application filed by the petitioners against which the present writ petition has been filed.
5. The learned Senior Counsel Mr. E. Manohar appearing for the petitioners submits that even though several contentions were raised before the Tribunal with regard to the ineligibility of the Respondents No. 9 to 13 before the Central Administrative Tribunal and also in the writ petition filed before this Court, he has only advancing one contention namely that the selection process undertaken by the Committee is vitiated being in contravention of the provisions of the Regulations. He urges before this Court that Mr. Arjun Rao, who is a member of selection committee was not present through out the selection process and he was present only when the candidates of his choice were to be interviewed. He also submits that when the selection dates were fixed long back, it would not be appropriate on the part of the said member of the selection committee to fix other meetings on the same day. He further submits that the selection is to the IAS cadre which is the highest post in the civil services of the country and unless the selection is carried out strictly in accordance with the provisions, the primacy assigned to the recommendations of the selection committee looses its credibility and confidentiality. In effect he submits that duty to act fairly and reasonably are lacking in the selection process. Added to this, likelihood of bias is writ at large. Hence, it is his contention that the entire process is vitiated and the Tribunal ought to have accepted the plea of the petitioners. He refers to various provisions of the Regulations in this regard, it will be considered in the subsequent paragraphs.
6. The learned Additional-Advocate General and also the learned Counsel appearing for the other respondents including the respondent Nos. 9 to 13 submit that the Order passed by the Tribunal is quite legal and valid and no grounds are made to assail the same. Even though various Counsels have advanced arguments differently, but the fulcrum of submissions is that the writ petition itself was not maintainable as the selection were not announced by the final authority and thus, no cause of action arises for agitating the matter at this stage. Further, it is also contended that the absence of Mr. Arjun Rao for certain period did not vitiate the proceeding in any manner, as under the provisions of the Rules, the Coram is fully complied with and even if Mr. Arjun Rao has not attended for the entire period of selection, it would not have any effect on the selection process or consequential results. It is also submitted by the learned Counsel for the respondents that Mr. Arjun Rao left the selection proceedings with the permission of the Chairman to enable him to attend other important works which were fixed long back and therefore, when once absented with the permission of the chairman, the proceedings cannot be said to be illegal or arbitrary or they do not get vitiated in any manner. Thus, while relying on certain decisions, which will be referred to at a later stage, they submit that the Order of the Tribunal is quite legal and valid and no interference is called for.
7. As already noticed supra, the issue falls in a very narrow compass. The matter relates to selection to the IAS under the provisions of the Selection Regulations, 1997 for selection and appointment for the year 2002 IAS cadre under the quota meant for non-State cadre Service Officers. There is also no dispute relating to the vacancy to be filled up, which is covered by the Regulation (3). Rules 4 and 5 relates to the procedure for sending the proposals for consideration of the Committee and preparation of the panel of suitable Officers by the Committee. The said regulations are extracted below:
“4. State Government to send proposals for consideration of the committee :–(1) The State Government shall consider the case of a person not belonging to the State Civil Service but serving in connecting with the affairs of the State who,
(i) is of outstanding merit and ability, and
(ii) holds a Gazetted post in a substantive capacity; and
(iii) has completed not less than 8 years of continuous service under the State Government on the first day of January of the year in which his case is being considered in any post which has been declared equivalent to the post of Deputy Collector in the State Civil Service and propose the person for consideration of the Committee. The number of persons proposed for considered of the Committee shall not exceed five times the number of vacancies proposed to be filled during the year:
Provided that the State Government shall not consider the case of person who has attained the age of 54 years on the first day of January of the year in which the decision is taken to propose the names for the consideration of the Committee;
Provided also that the State Government shall not consider the case of a person, who, having been included in an earlier select list, has not been appointed by the Central Government in accordance with the provisions of the Regulation 9 of these regulations.
5. Preparation of a list of suitable Officers by the Committee:–The Committee shall meet every year to consider the proposal of the State Government made under Regulation 4 and recommend the name of the persons, not exceeding the number of vacancies to be filled under Regulation 3, for appointment to the service. The suitability of a person for appointment to the service shall be determined by scrutiny of service records and personal interview:
Provided that no meeting of the Committee shall be held and no list for the year in question shall be prepared when
(a) there are no substantive vacancies as on the first day of January of the year in the posts available for recruitment of persons under Sub-rule (2) of Rule 8 read with proviso to Sub-rule (1) to Rule 9 of the recruitment rules; or
(b) the Central Government in consultation with the State Government decides that no recruitment shall be made, during the year to the substantive vacancies as on the first day of January of the year in the posts available for recruitment under Sub-rule (2) of Rule 8 read with proviso to Sub-rule (1) to Rule 9 of the recruitment rules; or
(c) the Commission, either on its own or on a proposal made by the Central Government or the State Government, considers that it is not practicable to hold a meeting of the Committee during the year, in the facts and circumstances of each case.
Explanation :–In case of Joint Cadres, a separate select list shall be prepared in respect of each constituent having State Civil Service.”
8. It is also to be admitted position that under the Rules, the posts of IAS is filled up by direct recruitment and by promotees in the ratio of 66 2/3% and 33 1/3%. Out of 33 1/3% posts, 15% of the said posts are reserved for Non-State Civil Service Cadre while 85% is exclusively filled up by the Officers of the Revenue Service. The petitioners and other Officers were short listed for interview by the selection. The preparation of the panel is the sole prerogative of the Committee on the basis of the Service record and also Interview. No marks have been allotted for service record and also for the interview under the Rules. Therefore, the Committee has to assess the Officers and allot gradings properly. No rules have been framed as to the method and manner in which the assessment has to be undertaken. The composition of the Committee consisted of seven members namely:
(1) Member of UPSC representing the Chairman,
(2) Chief Secretary,
(3) Mr. C. Arjun Rao, IAS.
(4) Mr. A.K. Goel, IAS.
(5) Mr. Priyadarshi Das and
two Officers nominated by the Government of India. Out of seven members, one Mr. Brajeswar Singh did not attend. When the interviews were conducted, the committee consists of only six members. Though, the petitioners submit that they pleaded many grounds before the Tribunal and also before this Court to the effect that Respondent Nos. 9 to 13 are not eligible to be appointed as such giving various instances of their ineligibility, yet before this Court, the only issue which was canvassed and argued was that the procedural irregularities in the process of selection vitiated the selections.
9. The question that calls for consideration is whether the selection process is in conformity with the Rules or it is vitiated by any irregularities or illegalities.
10. The sole contention, which is raised is that Mr. Arjun Rao has participated on and off and he did not interview all the candidates including the petitioners. It is only to favour the candidates who are alleged to have been selected, he was present and interviewed and thus transparency was not maintained at all in the selection process. The learned Senior Counsel would submit that the panel is prepared by the Committee on the basis of the service record and personal interview and unless all the members scrutinized the service record and interview of all the candidates, it cannot be said to be a fair and proper selection leading to the preparation of the panel. He submits that whether the candidates are selected or not it becomes immaterial. When once the selection process itself is vitiated, the entire process has to be set aside and the Committee has to conduct the fresh selection process. He further states that though the petitioners have stated that Respondents No. 9 to 13 were selected on the basis of unconfirmed information and the respondents were on record before the Tribunal, he reiterates that whether Respondents No. 9 to 13 were selected or not (even though they possessed negative marks) or whether other persons were selected, that becomes irrelevant and immaterial when the process is being attacked. The learned Counsel would also submit that when the process is challenged, it is not necessary that the petitioners should await the final results and then challenge the final selections.
11. Admittedly, in the case on hand, Mr. Arjun Rao has been attending to other commitments during the period of interviews. It is borne out by record that he did not fact interview all the candidates and interviewed about 9 candidates including Respondents No. 9 to 13 out of 29 candidates. Though, it is countered by the Counsel for the respondents that Coram was validly constituted and in as much as there was valid corum, sporadic participation of Mr. Arjun Rao did not disturb the situation. But, (his is a case where lack of corum can be said to be pleaded. The corum is available in the Committee to proceed, but the moot question that calls for consideration is whether a member having present in the Committee can participate at intervals and whether his participation disjunctively would vitiate the process. It is sought to be explained by the respondents that the important meetings were already fixed on the dates of interviews for the I.A.S. candidates in the Government namely Joint Collectors Conference and other meetings and therefore, he has to discharge the dual roles on those days and on account of his absence, it became necessary for selection Committee to proceed with the process whenever he was not physically present. This issue is of not of much importance in as much as Mr. Arjun Rao was absent when some of the candidates were interviewed and present when some of candidates of his alleged choice were available for interview when he rejoined the meeting. It is not possible to come to a conclusion that he participated only when a candidate of his choice was to be interviewed. The fairness, inaction which embraces the plea of bias are important facets in the decision making process. The duty to act fairly is incumbent on the part of the Committee. Whether that would affect the chances of selection or whether the entire proceedings get vitiated are the factors to be considered on the facts and circumstances of each case and we cannot adopt any straight jacket formula in such cases.
12. The contention that the O.A. and writ petition itself is not maintainable has been seriously urged by Mr. N. Subba Reddy, Senior Counsel appearing for one of the respondents and the same has to be decided on the basis of the material available on record. The learned Senior Counsel submits that mere preparation of panel is not the end of the process. There are checks and balances in the Regulations. After the panel is sent by the State Government to the Commission, it shall consider the same with reference to Regulation 7 of Indian Administrative Service (Appointment by Promotion) Regulation, 1955 and prepares final select list which will be approved by the Central Government. Further, the Central Government has also power under Rule 10 to appoint any person from select list in public interest. Therefore, until the final notification of selected candidate is submitted by the Central Government, no cause arises for challenge by the non-selectees. The contention that the O.A. itself was premature was neither pleaded nor urged before the Tribunal for the reasons best known to the respondents. In fact when O.A. was filed and interim Order was sought, the learned Tribunal declined to grant interim relief of stay of all further proceedings in pursuance of the selections held between 27.12.2002 and 31.12.2002, but the Tribunal observed that any selection would be subject to final out come of O.A. Against the said Order, the matter was carried before this Court in W.P.No. 2302 of 2003. This Court by an Order dated: 6.2.2003 directed that the selection of I.A.S. cadre under non-State Civil Service shall go on, final results shall not be declared. However, the writ petition was disposed of by this Court directing the tribunal to dispose of the O.A. itself, keeping the interim Orders passed by this Court i.e., 6.2.2003 in W.P. No. 31082 of 2003 in operation till the disposal of O.A. Therefore, the maintainability of the O.A. was not pressed into service at any point of time. Under those circumstances, we find that the respondents are estopped from contending the issue relating to maintainability of O.A. without first raising before the Tribunal. On this ground alone and without going into the merits of the case, we are inclined to reject the contention advanced by the learned Counsel for the respondents.
13. With regard to the question of irregularity in the process of selection on account of non-participation by Mr. Arjun Rao through out the interview session, it is contended by the learned Counsel for the respondents that it did not vitiate the proceedings in any manner. It is submitted that there is always presumption in favour of administrative action. Reliance was placed on a decision of the Supreme Court reported in Union of India v. Ashutosh Kumar Srivastava, . The Supreme Court in this case held that there is always presumption in favour of Administration that it exercises powers in good faith and for public benefit. The burden is on the individual to produce sufficient material to suggest of the mala fides of the authority concerned and it is not easy to discharge the same. The Supreme Court further held that when a bias was alleged against selection committee could not be proved, the Tribunal ought to consider the only way there was compliance of the relevant rules in conduct and interview, but it is not appropriate for the Tribunal to interfere with the judgment of the selection committee and substitute its own assessment.
14. In Dr. Chetkar Jha v. Dr. Vishwanath Prasad Verma, , the Supreme Court observed that Section 26(2) merely requires that the two experts shall be “associated” with the Commission before it made its recommendation. It does not say that such association can only be by their presence at the time of the interview. Denial of the right to vote to the experts does not indicate that they were required to be present at the time of the interview. The Commission, as required by Clause (iii) had the benefit of the advise of such experts, even if the advise was received by post. Therefore, associates with the Commission and the requirements of the clause were fulfilled, despite one of them not being present at the time of the interview. The appointment based on such recommendation was valid.
15. The learned Counsel for the respondents referred to the decision in Haryana Financial Corporation v. Jagdamba Oil Mills, 2002 (1) Scale 481, wherein on default of borrowed amount, action was taken under Section 29 of State Financial Corporation Act for recalling the loan and the possession of the unit was taken. At this point of time, the suit was filed for permanent injunction, which was decreed on the basis of the principles laid down in Mahesh Chandra v. Regional Manager, U.P. Financial Corporation . The appeal and Second Appeal were also dismissed. Thereafter, an appeal was filed before the Supreme Court. The Supreme Court set aside the judgment of the Courts below and the High Court and overruled the judgment in Mahesh Chandra’s case. While distinguishing the case, the Supreme Court observed in paras 9 to 14 as follows;
The guidelines were stated to be necessary to ensure fair play. That decision, as the factual position would go to show was rendered in a case where the borrower intended to repay the debt and was anxious to do so. While not insisting upon the borrower to honour the commitments undertaking by him, the Corporation alone cannot be shackled hand and foot in the name of fairness.
In matters like the present one, fairness cannot be a one-way street. Corporations borrow money from the Government or other financial corporations and are required to pay interest thereon. Where the borrower has no genuine intention to repay and adopts pretexts and plays to avoid payment, he cannot make the grievance that Corporation was not acting fairly, even if requisite procedures have been followed. THE obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction between a quasi-juducial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak v. Union of India [1969 (2) SCC 2621. Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have “a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred”. (As per Lord Diplock in Secretary of State for Education and Science v. Metropolitan Borough Counsel of Tameside (1977 AC 1014). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene. To quote the classic passage from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947 (2) All ER 680]:
“It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.”
While this is not the occasion to examine the content and contours of the doctrine of fairness, it is enough to reiterate for the purpose of this case that the power of the Courts while reviewing the administrative action is not that of an appellate Court.
The aforesaid position was succinctly stated in Gem Cap’s case (supra).
The fairness required of the Corporations cannot be carried to the extent of disabling them from recovering what is due to them. The matter can be looked at from another angle. The Corporation is an independent autonomous statutory body having its own constitution and rules to abide by, and functions and obligations to discharge. As such in the discharge of its functions, it is free to act according to its own light. The views it forms and decisions it takes are on the basis of the information in its possession and the advice it receives and according to its own perspective and calculations. Unless its action is mala fide, even a wrong decision by it is not open to challenge. It is not for the Courts or a third party to substitute its decision, however, more prudent, commercial or businesslike it may, for the decision of the Corporation. As was observed by this Court in U.P. Financial Corporation and Ors., v. Naini Oxygen & Acetylene Gas Ltd and Anr., , in commercial matters the Courts should not risk their judgments for the judgments of the bodies to whom that task is assigned. As was rightly observed by this Court in Karnataka State Financial Corporation v. Micro Cast Rubber & Allied Products (P.) Ltd. and Ors., , in the matter of action by the Corporation in exercise of the powers conferred on it under Section 29 of the Act, the scope of judicial review is confined to two circumstances i.e., (a) where there is statutory violation on the part of the State Financial Corporation, or, (b) where the State Financial Corporation acts unfairly i.e., unreasonably. While exercising its jurisdiction under Article 226 of the Constitution of India, 1950 (in short ‘the Constitution’), the High Court does not sit as an appellate authority over the acts and deeds of the Corporation. Similarly, the Courts other than the High Courts are not to interfere with action under Section 29 of the Act unless the aforesaid two situations exist.
16. We may however, record that we are not concerned with the powers of the Corporation to invoke the provisions under Section 29, but, the extent of the judicial review that can be pressed into service is the question involved. The respondents also submit that no prejudice was caused to the petitioner and hence they could not complain the violation of the principles of natural justice. They relied on the decision of the Supreme Court reported in Aligarh Muslim University v. Mansoor Ali Khan, . In the said case, apart from the interpretation of the Service Rules of the employees, an important issue arose for consideration as to whether a person can invoke the principles of natural justice, when it was a case where even if a notice had been given, the results would not have been different and no prejudice was caused to him. Delving on this point, the Supreme Court referred to M.C. Mehta v. Union of India, 1999 (6) SCC 273, wherein it was pointed out that there can be certain situations in which an Order was passed in violation of the principles of natural justice cannot be set aside under Article 226 of Constitution of India as no prejudice can be said to be caused to the persons concerned. The Supreme Court in the said case, while referring to the decision reported in Ridge v. Baldwin (1964 A.C. 40) held that breach of principles of natural justice was itself treated as prejudice and that no other de facto fact is need to be proved. But, the rigour of the rule in Ridge v. Baldwin (1964 AC 40) has been relaxed not only in England, but also in our country. In S.L. Kapoor v. Jagmohan, , the Supreme Court held that if upon admitted or indisputable facts, only one conclusion was passed, in such a case, the principle that breach of natural justice would not apply and hence, there was no necessity to quash the Order which passed in violation of the principles of natural justice. In K.L. Tripathi v. State Bank of India, , the Supreme Court held that mere violation of the principles of natural justice would not unsettle the action, but prejudice must also be proved namely de facto prejudice must be proved. It was observed quoting Wade’s Administrative Law (5th Edn. PP.472-75), as follows:
“… it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent … …
There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth.”
17. The Supreme Court also applied the above principle in several cases. The said principle also exhaustively dealt with in State Bank of Patiala v. S.K. Sharma, , where the principle has been reiterated and also in Rajendra Singh v. State of M.P., . The Supreme Court in such circumstances evolved “useless formality” theory. The Supreme Court observed in paras 25 and 26, thus:
The ‘useless formality’ theory, it must be noted, is an exception. Apart from the class of cases of “admitted or indisputable facts leading only to one conclusion” referred to above, – there has been considerable debate of the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta, , referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Singham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs, Garner, Craig, De Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.
It will be sufficient, for the purpose of the case of Mr. Mansoor Ali Khan to show that his case will fall within the exceptions stated by Chinnappa Reddy, J. in S.L. Kapoor v. Jagmohan, , namely, that on the admitted or indisputable facts – only one view is possible. In that event no prejudice can be said to have been caused to Mr. Mansoor Ali Khan though notice has not been issued.
A reference was also made to Utkal University v. Dr. Nrusingha Charan Sarangi, (1990) 2 SCC 193, (1999 (2) SCC 293). It was a case relating to selection of Reader in Oriya language. The selection committee consisted of various persons including Dr. J.B. Mohanti, Finally, Committee recommended two persons in order of preference namely Dr. S. Das and Dr. V.K. Mohanti. But, however, University appointed Dr. D.S. Das as Reader. To the said appointment, challenge was made by non-selected candidate. One of the contentions raised was that Dr. J.B. Mohanthy one of the members of the selection committee was on the Editorial Board of a Magazine, of which the Editor was Dr. S.N. Das and therefore, the member of the Committee would necessarily be inclined favourable towards the Editor of the said Magazine, thereby alleging that there is every likelihood of bias to be exercised in favour of the selected candidate. But, this contention was repelled in para 10, which is extracted below:
“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. 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 present case, it is not possible to come to a conclusion that the Selection Committee was biased in favour of the candidate selected.”
18. In Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School, , while dealing with the aspect of administrative law, the vis-a-vis the principles of natural justice, the Supreme Court observed as follows:
“In Administrative Law, Rules of natural justice are foundational and fundamental concepts and law is now well settled that the principles of natural justice are part of the legal and judicial procedures. On the question whether the principles of natural justice are also applicable to the administrative bodies, formerly, the law Courts in England and India had taken a different view. It was held in Franklin v. Minister of Town and Country Planning, (1947) 2 Ali ER 289, that the duty imposed on the Minister was merely administrative and not being judicial or quasi-judicial, the principle of natural justice as applicable to the judicial or quasi-judicial authorities was not applicable and the only question which was required to be considered was whether the Minister had complied with the direction or not. Such view was also taken by the Indian Courts and reference may be made to the decision of this Court in Kishan Chand Arora v. Commissioner of Police, Calcutta, , It was held that the compulsion of hearing before passing the order implied in the maxim ‘audi alteram partem’ applied only to judicial or quasi-judicial proceedings. Later on, the law Courts in England and also in India including this Court have specifically held that the principle of natural justice is applicable also in administrative proceedings. In the case of Breen v. Amalgamated Engineering Union, (1971) 1 All ER 1148, Lord Morris observed:
“We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed.”
It may be indicated herein that the aforesaid observation was quoted with approval by this Court in the decision in Maneka Gandhi v. Union of India, . In State of Orissa v. Binapani Dei, , this Court also accepted the application of the principle of natural justice in the order which is administrative in character. It was observed by Shah, J. :
“It is true that the order is administrative in character, but even an administrative order which involves civil consequences……….. must be made consistently with the rules of natural justice.” Similar view was also taken in A.K. Kraipak v. Union of India, and the observation of Justice Hegde may be referred to ; “Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially, there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rule of natural justice is to prevent miscarriage of justice, one fails to see why those rules should be made inapplicable to administrative enquiries.”
There are number of decisions where application of principle of natural justice in the decision-making process of the administrative body having civil consequence has been upheld by this Court but it is not necessary to refer to all such decisions. Prof. Wade in his Administrative Law (1988) at page 503, has very aptly observed that the principles of natural justice are applicable to almost the whole range of administrative powers.
Since the rules of natural justice were not embodied rules it is not possible and practicable to precisely define the parameter of natural justice. In Russell v. Duke of Norfolk, (1949)1 All ER 109, Tucker, LJ., observed :
“There are, in my view, no words which are of universal application to every kind of inquiry and the every kind of domestic Tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth.”
It has been observed by this Court in Union of India v. P.K. Roy, , that :
“The extent and application of the doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.”
Similar view was also expressed in A.K. Kraipak’s case . This Court observed:
‘What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.”
Prof. Wade in his Administrative Law has succinctly summarised the principle of natural justice to the following effect:
“It is not possible to lay down rigid rules as to when the principles of natural justice are to apply : not as to their scope and extent. Everything depends on the subject-matter, the application for principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice depend on the facts and the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter to be dealt with, and so forth.”
One of the cardinal principles of natural justice is : ‘Nemo debet esse judex in propria causa’ (No man shall be a judge in his own cause). The deciding authority must be impartial and without bias. It has been held by this Court in Secretary to Government Transport Department v. Munuswamy, , that a predisposition to decide for or against one party without proper regard to the true mertis of the dispute is bias. Personal bias is one of the three major limbs of bias namely pecuniary bias, personal bias and official bias. A classic case of personal bias was revealed in the decision of this Court in State of U.P. v. Mohd. Nooh, 1958 SCR 595; (AIR 1958 SC 86). In the said case, a departmental enquiry was held against an employee. One of the witnesses against the employee turned hostile. The officer holding the enquiry then left the enquiry, gave evidence against the employee and thereafter resumed to complete the enquiry and passed the order of dismissal. This Court quashed the order of dismissal by holding inter alia that the rules of natural justice were grievously violated.
In the instant case, Charge No. 12 states that a particular sum on account of amalgamated fund for the month of December was given to the appellant by Shri Maru Ram who was teacher in charge of the amalgamated fund. In the enquiry committee comprising of the three members, the said Shri Maru Ram was taken as one of the members and he himself deposed to establish the said Charge No. 12 and thereafter again joined the enquiry committee and submitted a report holding the appellant guilty of some of the charges including the said Charge No. 12. Shri Maru Ram was interested in establishing the said charge. From the charge itself, it is apparent that he had a predisposition to decide against the appellant. It is really unfortunate that although the appellant raised an objection before the enquiry committee by clearly indicating that the said Shri Maru Ram was inimical towards him and he should not be a member in the enquiry committee, such objection was rejected on a very flimsy ground, namely, that since the said Shri Maru Ram was one of the members of the Managing Committee and was the representative of the teachers in the Managing Committee it was necessary to include him in the enquiry committee. It is quite apparent that the enquiry committee Could have been constituted with other members of the Managing Committee and the rules of the enquiry are not such that Shri Maru Ram being teacher’s representative was required to be included in the said enquiry committee so that the doctrine of necessity may be attracted. If a person has a pecuniary interest, such interest, even if very small, disqualifies such person. For appreciating a case of personal bias or bias to the subject-matter the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place. De Smith in his Judicial Review of Administrative Action, (1980) at page 262 has observed that a real likelihood of bias means at least substantial possibility of bias. In R. v. Sunderland Justices, (1901) 2 KB 357 (373) it has been held that the Court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business. In R. v. Sussex Justices, (1924) 1 KB 256 (259) it has been indicated that answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done. In Halsbury Laws of England, (4th Edn.) Vol.2, para 551, it has been indicated that the test of bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias. The same principle has also been accepted by this Court in Manak Lal v. Dr. Prem Chand, . This Court has laid down that the test is not whether in fact, a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the Tribunal might have operated against him in the final decision of the Tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.”
19. The Supreme Court in Jaswanth Singh Nearwal v. State of Punjab, 1991 Supp. (1) SCC 313, where the father of the selected candidate was a member of the Public Service Commission and he did not participate, when his son appeared for viva voce, no mala fides were also shown against other members. In such a case, the selection was held not vitiated by reasonable likelihood of bias. The Supreme Court after referring to A.K. Kraipak v. Union of India, , and also Javid Rasool Bhat v. State of J&K, and Ashok Kumar Yadav v. State of Haryana, , observed as follows:
We heard learned Counsel for the respective parties on every aspect of the case at great length. The High Court was goaded to issue the above direction regulating selection between Bansal and other unsuccessful candidates, as also the consequence thereof, on applying the decision of this Court in A.K. Kraipak v. Union of India to neutralise Bansal’s father Shri J.R. Bansal being a member of the public service commission. And even though he had not participated in the deliberations of the Commission, when Bansal had been interviewed, his brooding presence was held negatively to have influenced the selection and the possible ouster of a possibly successful candidate. Kraipak case was one where one of the persons, who sat as a member of the selection board, was himself, one of the persons to be considered for selection. He participated in the deliberations of the selection board when the claims of his rivals were considered. He participated in the decisions relating to the preference in seniority. He participated at every stage in the deliberations of the selection board where there was conflict between his interest and duty. In such set of facts this Court unhesitatingly came to the conclusion that there was a reasonable likelihood of bias and therefore the principles of natural justice had got violated. But this Court in Javid Rasool Bhat v. State of Jammu & Kashmir did not vitiate the selection of a candidate to admission in a medical college on the ground of presence in the selection board of the father of one of the candidates. In this case, the Principal of Medical College, Srinagar whose daughter was a candidate for admission to the Medical College informed the Selection Committee at the very outset about this fact and told them that he would not have anything to do with a written test and would not be present when his daughter would be interviewed. The other members of the Selection Committee agreed to the proposal. The procedure adopted by the Selection Committee and the members concerned was in accord with the generally accepted and well known procedure adopted by the public service commissions everywhere in the country, as it was 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, mala fide. See this Court’s decision in S.N. Nagarajan v. State of Mysore also.
Then we have the momentous decision of this Court in Ashok Kumar Yadav v. State of Haryana which without whittling down the salutary principle evolved in Kraipak case has put the public service commissions, being creatures of the Constitution, at a higher pedestal. At pages 686-87, it was ruled as follows:
“But the situation here is a little different because the selection of candidates to the Haryana Civil Service (Executive) and Allied Services is being made not by any Selection Committee constituted for that purpose but it is being done by the Haryana public service commission which is a Commission set up under Article 316 of the Constitution. It is a Commission which consists of a Chairman and a specified number of members and is a constitutional authority. We do not think that the principle which requires that a member of a Selection Committee whose close relative is appearing for selection should decline to become a member of the Selection Committee or withdraw from it leaving it to the appointing authority to nominate another person in his place, need be applied in case of a constitutional authority like the public service commission, whether central or State. If a member of a public service commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the public service commission may be affected. When two or more members of a Public Service commission are holding a viva voce examination, they are functioning not as individuals but as the public service commission. Of course, we must make it clear that when a close relative of a member of a public service commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him.”
It was the admitted case before the High Court that Bansal’s father did participate in the deliberations of the Commission when the viva voce test of other candidates appearing before the Commission had been taken and he had accordingly awarded marks to the candidates otherwise competing with his own son. The High Court has still deduced that in spite of the afore-suggested bias the candidates who got selected against the posts (except his son) got their due unbiased and therefore their selection cannot be questioned. Taking this deduction to be corset, the High Court before issuing the direction under challenge, had farther to find that there was bias in excluding the unsuccessful candidates. We do not find this to have engaged the attention of the High Court. It is noticeable that besides Bansal’s father there were four other members of the public service commission and who had functioned as a Commission. As is evident there was a long list of as many 540 candidates to be interviewed and the interviews went on from 24-9-1973 uptill 30-10-1973. In the nature of things, there was no material before the High Court, and none has been pointed to us, from which it could be concluded that the members of the Commission could keep track of the comparatives of each of those 540 candidates so as to manipulate a favourable result to Bansal. We have not been shown any material to entertain the doubt that Bansal’s father being a member of the public service commission, per se had the effect of other members keeping track of comparatives in order to single out Bansal as a successful candidate. And lastly there is not a word of mala fide suggested against the other members of the public service commission, of having shared the supposed animus of Bansal’s father. Thus, in the facts and circumstances of this case, we do not find any reason to sustain the judgment of the High Court on this aspect of the case. Bansal’s father did what was expected of him, in having declined to participate in the deliberations of the Commission when Bansal went for the viva voce test.
Thus, it is sought to be contended by virtue of the above said decisions that a mere absence of one of the members on some occasions did not vitiate the proceedings in any manner and it is also not the case of the petitioners that Mr. Arjun Rao had any pecuniary or personal or other interest in the candidates whom he interviewed. The matter can also be considered from the point of view of the principles of natural justice. We need not elaborate the genesis and the development of this principle from its inception, suffice it to say that the procedural fairness’ and fairness in action are essential elements in decision-making process. The principles of natural justice has multiple facets. The test is fair play, is not only to be observed and practised, but also appears to have been done. In Ridge v. Baldwin Lord Reid (1964 A.C. 40), Lord Reid stated:
“In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But, I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore, it does not exist. The idea of negligence is equally insusceptible of exact definition…. And natural justice as it has been interpreted in the Courts is much more definite than that.” But, in the instant case, we are only concerned with the bias, which is one of the important facets of principles of natural justice.
20. The first principle of the rule against bias can be seen in the maxim Nemo judex in re sua: A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased.
These rules not only apply in ordinary Courts of law, but also to administrative decisions. In R v. Cheltenham Commissioners (1841) 1 Q.B. 467), Lord Denman CJ. said that:
“three Magistrates who were interested took part in the decision. It is enough to show that this decision was followed by an Order: and I will not enquire what the particular question was, nor how the majority was made up, nor what the result would have been if the Magistrates who were interested had retired. The Court was improperly instituted; and that rendered the decision invalid.”
It was held that pecuniary interest, however, small would be a disqualification and likewise, there would also be likelihood of bias from kindred or any other cause. However, certain amount of confusion was caused by concurrent cause of two different formulated decisions for disqualifying on the ground of bias. Some judges laid down the principle “real likelihood of bias” and “reasonable suspicion of bias”. Lord Denning in Metropolitan Properties (F.G.C.) Ltd. v. Lannon, 1969 (1) QB 577, said:
“Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough…. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased’.
21. In the instant case, it is of paramount importance to be noted that whether a person acting in judicial or administrative capacity has a direct or pecuniary interest in the out come of the proceedings, the danger of bias is self-evidence. But, the entire principle rests on the factual aspect of each and every case and this cannot be applied as a straight jacket formula, the facts of each case and the circumstances have to be thoroughly scanned before applying the principle. The House of Lords have now said the principle of real likelihood test in R v. Gough (1993) A.C. 646, wherein Lord Goff said:
“The test, as so stated, gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion, for that purpose.”
Applying the above principles, it has to be seen whether the bias in favour of certain candidates was established. It is true that Mr. Arjun Rao did not interview all the candidates and he has interviewed only certain candidates. But, what is nexus or the type of interest which existed between him and the candidates who were interviewed was not established. The mere allegation that he was inclined to select them and that he joined the Interview Committee when they were sought to be interviewed cannot be said to be as gospel truth. As observed by catena of decisions, he should have personal interest or kindered interest or any other interest, which ought to be borne out by substantial evidence. The test of bias and its impact has to be tested from the angle of a man of ordinary prudence. In the given circumstances, whether an ordinary prudent man would come to the conclusion that Mr. Arjun Rao was biased in favour of unofficial Respondents is a litmus test to be applied. The attending and preceding circumstances have to be considered. Though the principle of acting fairly and reasonably is of paramount importance, but the test is whether a reasonable intelligent man, fully appraised of all the events and circumstances would apprehend likelihood of all the events and circumstances would apprehend likelihood of bias. If the test is positive, the decision gets vitiated and not otherwise. In the instant case, we are not able to find any material to sustain the contention raised by the learned Counsel for the petitioner that there was procedural infraction so as to hold that Mr. Arjun Rao was biased in favour of certain persons. This is a unique case where the member of the Committee was intermittently joining the Interview Board and participated in the process of interviewing some of the candidates. But, by that process it cannot be concluded that the selection committee has not acted fairly and reasonably. Moreover, it is not the case of the petitioners that Mr. Arjun Rao was in such a dominating position, so as to influence all the Committee members not to veto his choice of candidates. Thus, viewed from any angle, we are not inclined to hold that the selection process was vitiated by bias.
22. However, before parting with the case, we are impelled to make certain observations. We are not impressed with the way in which Mr. Arjun Rao conducted himself. He being a senior most I.A.S. Officer ought to have exhibited sense of discipline and responsibility being the member of I.A.S. selection committee. The post of I.A.S. is a coveted post and the test for selection are so rigorous and vigorous that there is no scope for any suspicion either favouritism or bias or otherwise. Every prospective candidate has the ultimate aspiration to reach I.A.S. being the highest echelon in civil Services niche. Every participant should feel himself that he had done his best before the Committee members. In such an event, it is incumbent on the part of the each member of the Committee not only to feel proud of being member of such apex Committee, but also equally shoulder the responsibility. The fairness, inaction is not only to be done, but also appear to be done. To avoid scope for kind of comments as arisen in the instant case, it is always necessary that the members of the selection committee should meticulously follow the principles more especially when the unanimous opinion of the Committee is the criteria for selecting a candidate. The Rules themselves indicate that the candidates are selected by the Committee without there being any criteria. This itself shows the importance of the Committee and its decision. In such an event, much more responsibility is cast on each and every member of the Committee to ensure that each candidates is properly assessed with reference to the service record and also the personal interviewed. We hope that in future, the Officers participating in such high levels of the selection committees will observe high sense of responsibility and discipline, so as not to create any room for complacency on the part of the members of the Committee.
23. For the aforesaid reasons, the writ petition is dismissed.
24. No costs.