BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11/06/2010
CORAM
THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN
W.P.(MD)No.239 of 2010
and
M.P.(MD)No.1 of 2010
N.Subramanian ... Petitioner
Vs
1.District Elementary Educational Officer,
Thanjavur District,
Thanjavur.
2.The Assistant Elementary Educational Officer,
Kumbakonam.
3.Bharathidasan Aided Primary School,
Represented by its Secretary,
Pillayampatti,
Uma Maheswaranpuram Post,
Thruvidaimaruthur Taluk,
Thanjavur District.
4.T.Amutha ... Respondents
Writ Petition has been filed under Article 226 of the Constitution of India
praying for the issuance of a writ of Certiorarified Mandamus, calling for the
records relating to the impugned proceedings of the third respondent School
Committee, dated 24.11.2009 selecting the 4th respondent as Headmistress of the
third respondent School and quash the same and consequently, direct the third
respondent School to promote the petitioner as Head Master of the third
respondent School with all consequential benefits.
!For Petitioner ... Mr.G.R.Swaminathan
^For R1 and R2 ... Mr.S.C.Herold Singh
Government Advocate
For R3 & R4 ... Mr.Veera Kathiravan
:ORDER
Heard both sides.
2.The petitioner is working in the 3rd respondent School. The post of
Head Master became vacant in the 3rd respondent school in the year 2006 and that
was not filled up by the management for the reasons best known to them.
Nevertheless, the 3rd respondent made the 4th respondent as the Head Master in-
charge. The 4th respondent was also acting as Secretary of the School Committee
and hence, the first respondent initiated proceedings, dated 10.10.2008 and
withdrew the recognition or approval granted in favour of the 4th respondent
from acting as Secretary and further directed payment on the ground that she is
employed in the School as Secondary Grade Assistant and an employed teacher
cannot be a Secretary of the School Committee. The 3rd respondent challenged
the said proceedings in W.P.(MD)No.9279 of 2008. The 2nd respondent also
directed the 3rd respondent to appoint a senior most teacher in that School to
act as Head Master to receive grant in aid from the Government, by his
proceedings dated 13.10.2008 and till such time, grant in aid shall be paid
directly to the teacher. That proceeding was challenged in W,P.(MD)No.9280 of
2008. The 3rd respondent obtained interim orders and on the basis of the
interim orders, the 4th respondent is acting as Head Master in-charge and also
acting as Secretary of the School Committee. Meanwhile, the first respondent
passed an order, dated 21.07.2009 directing the 3rd respondent to give promotion
to the petitioner for the post of Head Master. That was challenged by the 3rd
respondent in W.P.(MD)No.7585 of 2009 and this Court set aside the said order
holding that under Section 18 of the Tamil Nadu Recognised Private Schools
(Regulation) Act, the School Committee is the competent authority to appoint
teachers and to give promotions and therefore, the first respondent has no
jurisdiction to issue such order. It was also made clear in that order that the
4th respondent herein shall continue as Head Master in-charge till a new Head
Master was selected by the School Committee. Though, the petitioner herein filed
W.A.(MD)No.566 of 2009 challenging the order made in W.P.(MD)No.7585 of 2009,
later it was withdrawn, as Selection Committee was constituted by the
management.
3.The 3rd respondent constituted a Selection Committee and it met on
27.11.2009 and in that said meeting, comparative evaluation of eligible
candidates were considered and the Selection Committee selected the 4th
respondent as Head Master of the institution. It is stated by the petitioner
that the selection of the 4th respondent as Head Master is bad in law and the
petitioner ought to have been selected as he is the senior most person employed
in the School. It is further stated that the School Committee which selected
the 4th respondent consists of not only the 4th respondent, but also the elder
brother of her husband and Mr.Kaliamoorthy, her husband’s cousin and the husband
of the 4th respondent is also a member of the School Committee, who is also
working as teacher in the same School and another member Vijaya Lakshmi,who is a
close relative of the 4th respondent and therefore, there is an element of bias
against the petitioner in the constitution of the School Committee and as a
senior most teacher, the petitioner ought to have been selected and further the
selection of the 4th respondent is also against G.O.Ms.No.97, dated 05.07.2001
and therefore, the writ petition is filed by the petitioner to quash the
selection proceedings of the School Committee.
4.The 2nd respondent filed a counter stating that the proposal of
appointing the 4th respondent as Head Master by the Selection Committee was not
approved by the authorities and the same was returned stating four grounds and
all the grounds stating therein are still hold good and the selection was not
made as per G.O.Ms.No.97, dated 05.07.2001 and the School Committee, without
considering the seniority, selected the 4th respondent who is a junior most
teacher in the School and she is also acting as Secretary of the School and as
such, she cannot be appointed as Head Master of the School.
5.The 3rd respondent filed a counter stating that the 4th respondent was
elected as Secretary and her appointment as Secretary was also approved by the
first respondent by his proceedings, dated 30.05.2002 and the selection of the
4th respondent as Head Master is in accordance with law and as per the the
provision of Tamil Nadu Recognised Private School (Regulation) Act and Rules and
as per the direction of this Court made in W.P.(MD)No.7585 of 2009, the
Selection Committee was validly constituted for selecting Head Master and 3
persons applied for the post of Head Master, including the petitioner and the
4th respondent and after conducting interview and after considering the merit
and ability of the participants and on the basis of the marks obtained by the
candidates, the Selection Committee finally decided that the 4th respondent
secured the maximum number of marks and therefore, accepting the recommendation
of the Selection Committee, the school committee appointed the 4th respondent as
Head Master of the School.
6.It is further stated that the petitioner is not a graduate and is having
the qualification of S.S.L.C. whereas the 4th respondent is having M.Phil and
B.Ed., and considering all these aspects, the 4th respondent was appointed as
Head Master of the School. It is further stated that the 4th respondent also
assumed charge on 25.12.2009 and even though, the 4th respondent was the
Secretary of the School Committee she did not participate in the selection
process and only on the basis of the recommendation of the School Committee, the
4th respondent was appointed. It is further stated that the order of the 3rd
respondent in appointing the 4th respondent as Head Master is an appealable
order and if any person aggrieved can prefer an appeal before the appellate
authority and as per Rule 15(4) of the Act, merit and ability are to be
considered and seniority shall be taken into consideration only when merit and
ability are apparently equal and therefore, it cannot be contended that the
senior most person is entitled to be appointed as Head Master, without
considering the merit and ability of other persons. The 3rd respondent also
denied the fact of bias in selecting the 4th respondent as Head Master of the
School and the selection was so transparent and there was no bias in selecting
the 4th respondent.
7.Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner
submitted that admittedly, the School Committee is consisting of members, who
are close relatives of the 4th respondent and the 4th respondent is also
admittedly acting as Secretary of the School Committee, despite the withdrawal
of recognition of her appointments as Secretary was made by the first
respondent, by his proceedings, dated 10.10.2008 and it is admitted by the 4th
respondent that the Selection Committee was constituted by the 4th respondent
and when she also applied to the post of Head Master to be selected by the
Selection Committee, she should not have participated in the constitution of
Selection Committee and therefore, the Selection Committee constituted is bad in
law and cannot be said to have been validly constituted Selection Committee and
hence, the entire process is vitiated. Though, Mr.G.R.Swaminathan, the learned
counsel appearing for the petitioner submitted that no allegation of bias is
stated against the members of the Selection Committee, the petitioner is
attacking the constitution of the Selection Committee by the 4th respondent and
according to him, the petitioner was also a member of School Committee and
having decided to appear as a candidate for the post of Head Master, he did not
participate in the meeting of the School Committee for selecting the Selection
Committee and likewise, the 4th respondent, who is acting as Secretary of the
School Committee ought to have rescued herself from that process and having
participated in selecting the Selection Committee, the constitution Selection
Committee is illegal and consequently, the selection of the 4th respondent is
also liable to be set aside.
8.He further submitted that as per Rule 13 of the Rules, a Head Master can
be appointed as Secretary of the School Committee in the official capacity and
the vice-a-vice is not contemplated and hence, a Secretary cannot be appointed
as Head Master of the School.
9.On the other hand, Mr.Veera Kathiravan, the learned counsel appearing
for the 3rd and 4th respondents submitted that the School Committee was formed
in pursuance of the provision of the Act and Rules and as per the direction of
this Court made in W.P.(MD)No.7585 of 2009 and as per the provisions of Rule 15
of the Rules, the Selection Committee has to be constituted for selecting the
candidates for the post of Head Master and as the Secretary of the School
Committee, she has to convene the School Committee and admittedly, no allegation
has been made against the members of the Selection Committee and they are not
related to the 4th respondent and therefore, the Selection Committee was validly
constituted.
10.He further submitted that the Selection Committee evaluated the
performance of three candidates as seen from the page 2,3,4 and 5 of the typed
set of papers and after considering the various aspects stated therein, it was
found that the 4th respondent herein has secured highest marks, than the other
two candidates and all the three members of the Selection Committee had given
highest marks to the 4th respondent and therefore, accepting the recommendation
of the Selection Committee, the 4th respondent was appointed as the Head Master.
11.Further, he submitted that as per Rule 15(4) of the Rule, for giving
promotion merit and ability are to be considered and when merit and ability are
apparently equal seniority can be considered and therefore, a senior most
teacher cannot claim to be appointed as Head Master as of right and G.O.Ms.No.97
is only recommendatory in nature and the said G.O. cannot over-ride the
provision of Rules, framed under the statute and hence, the appointment of the
4th respondent is perfectly valid and that cannot be interfered with.
12.The learned Government Advocate appearing for the respondents 1 and 2
submitted that a senior most teacher has to be appointed as per the provisions
of G.O.Ms.No.97 and in this case, the petitioner is the senior most and he ought
to have been considered for appointment for the post of Head Master and further,
the 4th respondent is acting as Secretary by the interim orders of this Court
passed in W.P.(MD)No.9279 of 2009 and the first respondent has already withdrawn
the recognition or approval granted to the 4th respondent to act as Secretary,
and hence, the appointment of the 4th respondent as Head Master in the 3rd
respondent School was not accepted by the respondents 1 and 2 and the proposal
was returned and hence, the appointment of the 4th respondent is not in
accordance with law.
13.I have given my anxious consideration to the submission made by both
parties.
14.Before going into the merits of the case, it is necessary to state
certain admitted facts. The 4th respondent was appointed as Secretary of the
School Committee and the appointment was also approved by the first respondent,
by proceedings, dated 30.05.2002 and at the time, the 4th respondent was not a
teacher employed in the 3rd respondent School and subsequently, she was
appointed as teacher in the 3rd respondent School and therefore, the first
respondent withdrew the approval granted in favour the 4th respondent as
Secretary. The first respondent also by the same proceedings ordered direct
payment as there is no validly appointed Secretary for that School. This
proceedings of the first respondent was challenged in W.P.(MD)No.9279 of 2009
and the order of the first respondent was upheld by me in a separate order
passed today. The 2nd respondent also issued the proceedings, dated 13.10.2008
directing the 3rd respondent herein to appoint the petitioner herein, who is the
senior most teacher to act as Head Master and till such time, resorted to direct
the payment and that was challenged in W.P.(MD)No.9280 of 2008 and both the writ
Petition Nos.. 9279 & 9280 of 2008 were heard together by me along with this
writ petition and a common order was passed, dismissing the W.P.(MD)No.9279 of
2008 and W.P.(MD)No.9280 of 2008 with certain observations stated therein.
Therefore, by reason of the orders passed in W.P.(MD)No.9279 and 9280 of 2008,
the 4th respondent cannot function as Secretary till her appointment as
Secretary on the basis of her appointment as Head Master is approved. I have
also held in the said order that the withdrawal of the approval granted in
favour of T.Amutha as Secretary by the first respondent is valid and having
regard to the fact that the 3rd respondent has appointed the 4th respondent as
Head Master of the School, she is also eligible to be appointed as Secretary of
the School Committee and till such nomination is made by the School Committee,
she cannot act as a Secretary of the School Committee. Now the petitioner has
challenged the proceedings of the School Committee dated 24.11.2009 in selecting
the 4th respondent as Head Master of the School.
15.Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner
further submitted that by virtue of the interim orders passed in W.P.(MP)No.9279
of 2008, the 4th respondent is continuing as Secretary of the School Committee
and the Selection Committee was constituted by the School Committee wherein she
also participated and she also convened the School Committee for selecting the
Selection Committee and therefore, the constitution of Selection Committee is
vitiated, since the 4th respondent was also one of the candidates, appeared
before the Selection Committee for the post of Head Master and she also happened
to be the Secretary of the School Committee.
16.He further submitted that Mr.Veeramani, who is one of the members of
the Selection Committee and also the President of the School Committee, is the
brother of the husband of 4th respondent and therefore, by appointing a relative
to a School Committee, there is every likelihood of influence in the selection
and hence, the selection process is vitiated and the constitution of the
Selection Committee is also vitiated. He further submitted that as per Rule 13
of the Act, the Head Master can be appointed as Secretary of the School
Committee and the converse is not permissible and hence, a person acting as
Secretary cannot be appointed as Head Master.
17.On the other hand, Mr.Veera Kathiravan, the learned counsel appearing
for the respondents 3 and 4 that the petitioner is estopped from challenging the
vires of constitution of Selection Committee after having participated in the
selection process without raising any objection and it is not open to the
petitioner to question the same after knowing that he was not selected.
18.He further submitted that as per Rule 15, senior teachers need not be
appointed as Head Master and the School Committee has to appoint persons after
considering the merit and ability and therefore, Selection Committee after
considering the various aspects as stated in their report came to the conclusion
that the 4th respondent is the most suitable person and recommended her
appointment and that was approved by the 3rd respondent and there was nothing
illegal.
19.Therefore, we will have to see whether the constitution of the
Selection Committee is valid as contended by the learned counsel appearing for
the petitioner and whether there is any element of bias in the appointment of
the 4th respondent and whether the petitioner is estopped from challenging the
constitution of Selection Committee after appearing before the Selection
Committee without raising any protest or objection?
20.In this connection, it is useful to quote the following passage from
the Principles of Administrative Law by Jain & Jain, Vol.I, 6th edn. page 565
under the caption “Group Decision” – “Where a decision is taken by a group of
persons, such as a board or Committee, bias of one member affects the validity
of the group decision and it does not matter that the biased member did not
actively participate in the decision, or that he remained silent and did not
seek to influence the decision of other members in the group. The reason is that
in such a case, the question is not whether there was actual bias or not but
whether there was a reasonable likelihood of bias. The Supreme Court in the
celebrated judgment of A.K.Kraipak reported in AIR 1970 SC 150= 1969(2) SCC 262
said that in a group decision, each member of the group is bound to influence
the other. This view has been reiterated since then in a number of cases, AIR
1987 SC 71 = (1986)4 SCC 537, Institute of Chartered Accountant of India vs.
L.K.Ratna. In Sarana, (1976)3 SCC 585= 1976 AIR SC 2428, the Supreme Court
reiterated the proposition that bias on the part of a member of the Selection
Committee for filling certain posts may vitiate it recommendations. On this
point, the Court had stated: “In deciding the question of bias, human
probabilities and ordinary course of human conduct have to be taken into
consideration. In a group deliberation and decision like that of a Selection
Board, the members do not function as computers, Each member of the group or
board is bound to influence the others, more so if the member concerned is a
person with special knowledge. His bias is likely to operate in a subtle
manner.”
One member can subtly influence the minds of the other members in his
favour. In Rattan Lal Sharma, [AIR 1993 SC 2155 = 1993(2) LLJ 549] the Supreme
Court quashed a group decision on Account of the bias of one of its members.
When a Selection Committee to select persons for civil posts includes as a
member the son-in-law of a selected candidate (while some of his seniors were
not selected), the selections were quashed on the ground of bias, even though
the Committee was presided over by an independent person, e.g. the Chairman of
the Union Public Service Commission [D.K.Khanna v. U.O.I, AIR 1973 HP30]. The
doctrine of bias, the court held, would apply in case the relationship between
the adjudicator and a party before him was so closed as to give rise to the
reasonable likelihood of the adjudicator espousing the cause of the party as his
won. In the instant case, the relationship between the Committee member and the
candidate selected was sufficiently close to bring the doctrine against bias
into play. ” The nearness of the relationship could reasonably give the
impression to the other candidates that there was a ‘real likelihood’ of the
member espousing the case of his father-in-law”. The court emphasised that the
facts that the member concerned remained silent in the Committee meeting, or
that he did not influence the members of the Committee, or that the Committee
was aware of the member’s relationship with the candidate, were of no
consequence. The law was not concerned with whether the member concerned in
fact participated in the consideration of his father-in law’s candidature, or
spoke to the prejudice of other candidates. “The law is concerned with
determining whether there was a reasonable likelihood of bias”. In a group
discussion, each member of the group influences the other. The selection list
was therefore quashed as, in the court’s opinion, the petitioners could have
legitimately believed that there was a “reasonable likelihood of bias” in favour
of the candidate selected to the deteriment of the petitioners because of the
presence of his son-in-law on the Committee. When the mother-in-law of a
candidate for post-graduate course in a medical college was a member of the
Selection Committee, his selection was quashed. A similar question has now been
considered in some detail by the Supreme Court in Ashok Kumar Yadav v. Haryana
[AIR 1987 SC 454]. The basic question raised in the case was; when a near
relation of a member of a Selection Committee is a candidate, what should the
member do? should he desist from interviewing all the candidates or only his
relation? Taking a broader view of the matter, the court has laid down the
following proposition: if a Selection Committee is constituted for the purpose
of selecting candidates on merits, and one of its members is closely related to
a candidate appearing for the selection, such member should not merely withdraw
from participation in the interview of the candidate related to him but he must
withdraw altogether from the entire selection process, otherwise all selection
would be vitiated on account of reasonable likelihood of bias affecting the
selection process.
In Mohapatra & Co. v. State of Orissa [AIR 1984 SC 1572](1984 (4) SCC
103), the Supreme Court applied the same principle. The Court ruled that mere
non-participation in the discussion by an interested member or even his
withdrawal from deliberations of the Committee when his books are being
considered for selection, would not suffice because the evil of quid pro quo
cannot be eliminated by this. “Members deliberating would bear in mind that the
turn for selecting their books would also come and the concerned member who had
not participated or had withdrawn would then be favourably inclined to select
their books.”
Therefore, it is seen from the above principles laid down by the Honourable
Supreme Court that even in the case of non-participation in the selection
process by an interested member,the element of bias cannot be eliminated and
such constitution of the Committee cannot be upheld.
21.The Honourable Supreme Court in the judgment reported in AIR 1957 SCC
425, in the case of Manak Lal, Advocate vs. Dr.Prem Chan Singhvi and others has
held as follows: “It is well settled that every member of a tribunal that is
called upon to try issues in judicial or quasi-judicial proceedings must be able
to act judicially; and it is of the essence of judicial decisions and judicial
administration that judges should be able to act impartially, objectively and
without any bias. In such cases 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.
22.This case was followed in all the subsequent cases referred to above
and therefore, from the above judgments, if one of the candidate is also a
member of the Committee, even though that candidate did not participate in the
selection process or withdrew from the constitution of the Selection Committee,
the elements of bias can be attributed and their selection cannot be upheld.
But in this case, even though the petitioner was aware that the Selection
Committee was constituted by the School Committee wherein the 4th respondent is
acting as Secretary and her relatives are members of the School Committee and
her husband and his eldest brother,is also acting as President of the School
Committee, he did not raise any objection to the constitution of Selection
Committee and participated in the interview conducted by the Selection Committee
and after knowing that he was not selected, questioned the constitution of
Selection Committee in this writ petition.
23.Further, Mr.G.R.Swaminathan, the learned counsel appearing for the
petitioner made it clear that it is not the case of the petitioner that the
members of the Selection Committee are biased towards the 4th respondent and
according to him, the 4th respondent being the Secretary of the School Committee
ought not to have participated in the constitution of the Selection Committee
and the petitioner, who is also a member of the School Committee withdrew
himself from participating in the meeting convened for the selection of
Selection Committee and likewise, the 4th respondent ought to have rescued
herself from participating in the meeting, while selecting the Selection
Committee, but the 4th respondent participated in the said meeting and hence,
the constitution of Selection committee cannot be considered to be a valid one.
24.In this case, we will have to see the role of the 4th respondent.
Admittedly, the 4th respondent is the Secretary of the School Committee and as a
Secretary, she has to discharge certain functions. It has been held in the
judgment reported in 2006(3) SCC 276, [State of U.P. vs. Sheo Shanker Lal
Srivastava and others] as follows:
13.It is true that the principle of natural justice is based on two
pillars; (i) nobody shall be condemned without hearing; and (ii) nobody shall be
a judge in his own cause.
14.It is, however, well known that the principles of natural justice can
be excluded by a statute. They can also be waived.
15.In a case where doctrine of necessity is applicable compliance with the
principles of natural justice would be excluded.
16.Referring to the doctrine of necessity, Sri William Wade in his
Administrative Law stated:
“But there are many cases where no substitution is possible, since no one
else is empowered to act. Natural justice then has to give way to necessity;
for otherwise there is no means of deciding and the machinery of justice or
administration will break down.”
It was further stated: ” In Administrative cases the same exigency may
arise. Where the statute empowers a particular minister or official to act, he
will usually be the one and only person who can do so. There is then no way of
escaping the responsibility, even if he is personally interested. Transfer of
responsibility is, indeed, a recognised type of ultra vires. In one case it was
unsuccessfully argued that the only minister competent to confirm a compulsory
purchase order for land for an airport had disqualified himself by showing bias
and that the local authority could only apply for a local Act of Parliament.
Therefore, by applying doctrine of necessary, the 4th respondent as the
Secretary of the School Committee has to necessarily convene the School
Committee meeting and merely because she has participated in the meeting, while
selecting the Selection Committee it cannot be stated that she could have
influenced the other members while selecting the Selection Committee.
25.As rightly contended by the learned counsel appearing for the
respondents 3 and 4, Mr.Veera Kathiravan, the petitioner having participated in
the selection process without raising objection has waived his right to
challenge the right of the constitution of the Selection Committee and is
estopped from the constitution of the Selection Committee.
26.In the judgment reported in AIR 1957 SC 425, in the case of Manak Lal,
Advocate vs. Dr.Prem Chand Singhvi and others, it has been held as follows:
“The next question which falls to be considered is whether it was open to
the appellant to take this objection for the first time before the High Court.
In other words, has he or has he not waived his objection to the presence of
Shri Chhangani in the tribunal? Shri Daphtary does not seriously contest the
position that the objection could have been effectively waived. The alleged
bias in a member of the tribunal does not render the proceedings invalid if it
is shown that the objection against the presence of the member in question had
not been taken by the party even though the party knew about the circumstances
giving rise to the allegations about the alleged bias and was aware of his right
to challenge the presence of the member in the tribunal. It is true that waiver
cannot always and in every case be inferred merely from the failure of the party
to take the objection. Waiver can be inferred only if and after it is shown
that the party knew about the relevant facts and was aware of his right to take
the objection in question. As Sir John Romilly, M.R. has observed in Vyvyan v.
Vyvyan (1861)30 Beav 65 at p.74; 54 E.R.813 at p. 817 (E) waive or
acquiescence, like election, presupposes that the person to be bound is fully
cognizant of his right and that being so, he neglects to enforce them, or
chooses one benefit instead of another, either but not both, of which he might
claim. “If in the present case, it appears that the appellant knew all the
facts about the alleged disability of Shri Chhangani and was also aware that he
could effectively request the learned Chief Justice to nominate some other
member instead of Shri Chhangani and yet did not adopt that course, it may well
be that he deliberately took a chance to obtain a report in his favour from the
tribunal and when he came to know that the report had gone against him he
thought better of his rights and raised this point before the High Court for the
first time. In other words, though the point of law raised by Shri Daphtary
against the competence of the tribunal be sound it is still necessary for us to
consider whether the appellant was precluded from raising this point before the
High Court by waiver or acquiescence.
“9.From the record it is clear that the appellant never raised this point
before the tribunal and the manner in which this point was raised by him even
before the High Court is somewhat significant. The first ground of objection
filed by the appellant against the tribunal’s report was that Shri Chhangani had
pecuniary and personal interest in the complainant Dr.Prem Chand. The learned
Judges of the High Court have found that the allegations about the pecuniary
interest of Shri Chhangani in the present proceedings are wholly unfounded and
this finding has not been challenged before us by Shri Dephtary. The learned
Judges of the High Court have also found that the objection was raised by the
appellant before them only to obtain an order for a fresh enquiry and thus gain
time. It may be conceded in favour of Shri Dephtary that the judgment of the
High Court does not in terms find against the appellant on the ground of waiver
though that no doubt appears to be the substance of their conclusion. We have,
however, heard Shri Daphtary’s case on the question of waiver and we have no
hesitation in reaching the conclusion that the appellant waived his objection
deliberately and cannot now be allowed to raise it. Shri Daphtary does not
contend that at the material time the appellant did not remember the fact that
Shri Chhangani had appeared for Dr.Prem Chand in the criminal proceedings.
Indeed such a plea cannot be raised by the appellant in view of the affidavit
which the appellant sought to place before us in the present appeal. Under this
affidavit, the appellant’s case appears to be that until he met his advocate
Shri Murli Manohar for filing objections to the report of the tribunal, the
appellant did not know that Shri Chhangani was legally disqualified from acting
as a member of the tribunal. It is obvious that this ground necessarily implies
that the appellant knew about the facts giving rise to the alleged
disqualification of Shri Chhangani to act as a member of the tribunal. In
substance the contention is that though the appellant knew that Shri Chhangani
had appeared for Dr. Prem Chand in the criminal proceedings in question, he was
not aware that in consequence, Shri Chhangani was disqualified to act as a
member of the tribunal. It is this limited aspect of the matter which is pressed
before us by Shri Daphtary. Shri Daphtary contends and no doubt rightly that if
we are satisfied that the appellant did not know about the true legal position
in this matter and his rights arising therefrom, his failure to challenge the
appointment of Shri Chhangani on the tribunal would not raise an effective plea
of waiver. However, in our opinion, it is very difficult to accept Shri
Daphtary’s argument that his client did not know that true legal position or his
rights until he met Shri Murli Manohar. No doubt the appellant is a junior at
the Bar but even so he can claim ten year’s standing at the Bar. Besides, he
had the assistance of a lawyer in defending him in the present proceedings and
it appears extremely difficult to assume that neither the appellant nor his
lawyer knew that the presence of Shri Chhangani in the tribunal could be
effectively challenged by them. We are disposed to think that even a layman, not
familiar with legal technicalities and equitable principles on which this
doctrine of disability has been based would have immediately apprehended that
the lawyer who had appeared for Dr.Prem Chand was authorised to sit in judgment
over the conduct of the appellant and that might cause embarrassment to the
appellant and might lead to prejudice against him. From a purely common-sense
point of view of a layman, the position was patently awkward and so, the
argument that the appellant was not conscious of his legal rights in this matter
appears to us to be an after-thought. Since the appellant was driven to adopt
this untenable position before the High Court is seeking to raise this point for
the first time at that stage, we are not surprised that the High Court took the
view that the plea had been taken late in order to gain time and to secure a
fresh enquiry in the matter. Since we have no doubt that the appellant knew the
material facts and must be deemed to have been conscious of his legal rights in
that matter, his failure to take the present plea at the earlier stage of the
proceedings creates an effective bar of waiver against him. It seems clear that
the appellant wanted to take a chance to secure a favourable report from the
tribunal which was constituted and when he found that he was confronted with an
unfavourable report, he adopted the device of raising the present technical
point.”
27.Further, in the judgment reported in 1976(3) SCC 585, Dr.G.Sarana vs.
University of Lucknow and others, the Honourable Supreme Court has held as
follows: “We do not, however, consider it necessary in the present case to go
into the question of the reasonableness of bias or real likelihood of bias as
despite the fact that the appellant knew all the relevant facts, he did not
before appearing for the interview or at the time of the interview raise even
his little finger against the constitution of the Selection Committee. He seems
to have voluntarily appeared before the Committee and taken a chance of having
a favourable recommendation from it. Having done so, it is not now open to him
to turn round and question the constitution of the Committee.” This is also
followed in the judgment reported in 1992(2)SCC 193 [Bishan Dass Bagha
vs.Government of Punjab and others ].
Therefore, The petitioner having participated in the interview conducted by the
Selection Committee cannot question the constitution of the Selection Committee,
after knowing that he was not selected and hence, as held by the Honourable
Supreme Court, the petitioner cannot challenge the constitution of the Selection
Committee and according to me, the Selection Committee was validly constituted
as per the provisions of the rules and the 4th respondent was selected on the
basis of the evaluation done by the Selection Committee and hence, the
appointment of the 4th respondent is perfectly valid and the same cannot be
challenged by the petitioner.
28.In the result, the writ petition is dismissed. Consequently, connected
Miscellaneous Petition is closed. No costs.
er
To,
1.District Elementary Educational Officer,
Thanjavur District,
Thanjavur.
2.The Assistant Elementary Educational Officer,
Kumbakonam.
3.The Government Advocate,
Madurai Bench of Madras High Court,
Madurai.