{"id":13021,"date":"2010-06-11T00:00:00","date_gmt":"2010-06-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-subramanian-vs-district-elementary-educational-on-11-june-2010"},"modified":"2018-06-12T14:40:50","modified_gmt":"2018-06-12T09:10:50","slug":"n-subramanian-vs-district-elementary-educational-on-11-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-subramanian-vs-district-elementary-educational-on-11-june-2010","title":{"rendered":"N.Subramanian vs District Elementary Educational … on 11 June, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
N.Subramanian vs District Elementary Educational … on 11 June, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 11\/06\/2010\n\nCORAM\nTHE HONOURABLE MR. JUSTICE R.S.RAMANATHAN\n\nW.P.(MD)No.239 of 2010\nand\nM.P.(MD)No.1 of 2010\n\nN.Subramanian                                               ... Petitioner\n\nVs\n\n1.District Elementary Educational Officer,\n   Thanjavur District,\n   Thanjavur.\n\n2.The Assistant Elementary Educational Officer,\n   Kumbakonam.\n\n3.Bharathidasan Aided Primary School,\n   Represented by its Secretary,\n   Pillayampatti,\n   Uma Maheswaranpuram Post,\n   Thruvidaimaruthur Taluk,\n   Thanjavur District.\n\n4.T.Amutha                                                  ... Respondents\n\n\nWrit Petition has been filed under Article 226 of the Constitution of India\npraying for the issuance of a writ of Certiorarified  Mandamus, calling for the\nrecords relating to the impugned proceedings of the third respondent School\nCommittee, dated 24.11.2009 selecting the 4th respondent as Headmistress of the\nthird respondent School and quash the same and consequently, direct the third\nrespondent  School to promote the petitioner as Head Master of the third\nrespondent School with all consequential benefits.\n\n\n!For Petitioner  ... Mr.G.R.Swaminathan\n\n^For R1 and R2   ... Mr.S.C.Herold Singh\n                     Government Advocate\nFor R3  & R4     ... Mr.Veera Kathiravan\n\n\n:ORDER\n<\/pre>\n
\tHeard both sides.\n<\/p>\n
\t2.The petitioner is working in the 3rd respondent School.   The post of
\nHead Master became vacant in the 3rd respondent school in the year 2006 and that
\nwas not filled up by the management for the reasons best known to them.
\nNevertheless, the 3rd respondent made the 4th respondent as the Head Master in-
\ncharge.  The 4th respondent was also acting as Secretary of the School Committee
\nand hence, the first respondent initiated proceedings, dated 10.10.2008 and
\nwithdrew the recognition or approval granted in favour of the 4th respondent
\nfrom acting as Secretary and further directed payment on the ground that she is
\nemployed in the School as Secondary Grade Assistant and an employed teacher
\ncannot be a Secretary of the School Committee.  The 3rd respondent challenged
\nthe said proceedings in W.P.(MD)No.9279 of 2008.  The 2nd respondent also
\ndirected the 3rd respondent to appoint a senior most teacher in that School to
\nact as Head Master to receive grant in aid from the Government, by his
\nproceedings dated 13.10.2008 and till such time, grant in aid shall be paid
\ndirectly to the teacher. That proceeding was challenged in W,P.(MD)No.9280 of
\n2008.  The 3rd respondent obtained interim orders and on the basis of the
\ninterim orders, the 4th respondent is acting as Head Master in-charge and also
\nacting as Secretary of the School Committee. Meanwhile, the first respondent
\npassed an order, dated 21.07.2009 directing the 3rd respondent to give promotion
\nto the petitioner  for the post of Head Master.  That was challenged by the 3rd
\nrespondent in W.P.(MD)No.7585 of 2009 and this Court set aside the said order
\nholding that under Section 18 of the Tamil Nadu Recognised Private Schools
\n(Regulation) Act, the School Committee is the competent authority to appoint
\nteachers and to give promotions and therefore, the first respondent has no
\njurisdiction to issue such order.  It was also made clear in that order that the
\n4th respondent herein shall continue as Head Master in-charge till a new Head
\nMaster was selected by the School Committee. Though, the petitioner herein filed
\nW.A.(MD)No.566 of 2009 challenging the order made in W.P.(MD)No.7585 of 2009,
\nlater it was withdrawn, as Selection Committee was constituted by the
\nmanagement.\n<\/p>\n
\t3.The 3rd respondent constituted a Selection Committee and it met on
\n27.11.2009 and in that said meeting, comparative evaluation of eligible
\ncandidates were considered and the Selection Committee selected the 4th
\nrespondent as Head Master of the institution. It is stated by the petitioner
\nthat the selection of the 4th respondent as Head Master is bad in law and the
\npetitioner ought to have been selected as he is the senior most person employed
\nin the School.  It is further stated that the School Committee which selected
\nthe 4th respondent consists of not only the 4th respondent, but also the elder
\nbrother of her husband and Mr.Kaliamoorthy, her husband’s cousin and the husband
\nof the 4th respondent is also a  member of the School Committee, who is also
\nworking as teacher in the same School and another member Vijaya Lakshmi,who is a
\nclose relative of the 4th respondent and therefore, there is an element of bias
\nagainst the petitioner in the constitution of the School Committee and as a
\nsenior most teacher, the petitioner ought to have been selected and further the
\nselection of the 4th respondent is also against G.O.Ms.No.97, dated 05.07.2001
\nand therefore, the writ petition is filed by the petitioner to quash the
\nselection proceedings of the School Committee.\n<\/p>\n
\t4.The 2nd respondent filed a counter stating that the proposal of
\nappointing the 4th respondent as Head Master by the Selection Committee was not
\napproved by the authorities and the same was returned stating four grounds and
\nall the grounds stating therein are still hold good and the selection was not
\nmade as per G.O.Ms.No.97, dated 05.07.2001 and the School Committee, without
\nconsidering the seniority, selected the 4th respondent who is  a junior most
\nteacher in the School and she is also acting as Secretary of the School and as
\nsuch, she cannot be appointed as Head Master of the School.\n<\/p>\n
\t5.The 3rd respondent filed a counter stating that the 4th  respondent was
\nelected as Secretary and her appointment as Secretary was also approved by the
\nfirst respondent by his proceedings, dated 30.05.2002 and the selection of the
\n4th respondent as Head Master is in accordance with law and as per the the
\nprovision of Tamil Nadu Recognised Private School (Regulation) Act and Rules and
\nas per the direction of this Court made in W.P.(MD)No.7585 of 2009, the
\nSelection Committee was validly constituted for selecting Head Master and 3
\npersons applied for the post of Head Master, including the petitioner and the
\n4th respondent and after conducting interview and after considering the merit
\nand ability of the participants and on the basis of the marks obtained by the
\ncandidates, the Selection Committee finally decided that the 4th respondent
\nsecured the maximum number of marks and therefore, accepting the recommendation
\nof the Selection Committee, the school committee appointed the 4th respondent as
\nHead Master of the School.\n<\/p>\n
\t6.It is further stated that the petitioner is not a graduate and is having
\nthe qualification of S.S.L.C. whereas the 4th respondent is having M.Phil and
\nB.Ed., and considering all these aspects, the 4th respondent was appointed as
\nHead Master of the School.  It is further stated that the 4th respondent also
\nassumed charge on 25.12.2009 and even though, the 4th respondent was the
\nSecretary of the School Committee she did not participate in the selection
\nprocess and only on the basis of the recommendation of the School Committee, the
\n4th respondent was appointed.  It is further stated that the order of the 3rd
\nrespondent in appointing the 4th respondent as Head Master is an appealable
\norder and if any person aggrieved can prefer an appeal before the appellate
\nauthority and as per Rule 15(4) of the Act, merit and ability are to be
\nconsidered and seniority shall be taken into consideration only when merit and
\nability are apparently equal and therefore, it cannot be contended that the
\nsenior most person is entitled to be appointed as Head Master, without
\nconsidering the merit and ability of other persons.  The 3rd respondent also
\ndenied the fact of bias in selecting the 4th respondent as Head Master of the
\nSchool and the selection was so transparent and there was no bias in selecting
\nthe 4th respondent.\n<\/p>\n
\t7.Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner
\nsubmitted that admittedly, the School Committee is consisting of members, who
\nare close relatives of the 4th respondent and the 4th respondent is also
\nadmittedly acting as Secretary of the School Committee, despite the withdrawal
\nof recognition of her appointments as Secretary was made by the first
\nrespondent, by his proceedings, dated 10.10.2008 and it is admitted by the 4th
\nrespondent that the Selection Committee was constituted by the 4th respondent
\nand when she also applied to the post of Head Master to be selected by the
\nSelection Committee, she should not have participated in the constitution of
\nSelection Committee and therefore, the Selection Committee constituted is bad in
\nlaw and cannot be said to have been validly constituted Selection Committee and
\nhence, the entire process is vitiated.  Though, Mr.G.R.Swaminathan, the learned
\ncounsel appearing for the petitioner submitted that no allegation of bias is
\nstated against the members of the Selection Committee, the petitioner is
\nattacking the constitution of the Selection Committee by the 4th respondent and
\naccording to him, the petitioner was also a member of School Committee and
\nhaving decided to appear as a candidate for the post of Head Master, he did not
\nparticipate in the meeting of the School Committee for selecting the Selection
\nCommittee and likewise, the 4th respondent, who is acting as Secretary of the
\nSchool Committee ought to have rescued herself from that process and having
\nparticipated in selecting the Selection Committee, the constitution Selection
\nCommittee is illegal and consequently, the selection of the 4th respondent is
\nalso liable to be set aside.\n<\/p>\n
\t8.He further submitted that as per Rule 13 of the Rules, a Head Master can
\nbe appointed as Secretary of the School Committee in the official capacity and
\nthe vice-a-vice is not contemplated and hence, a Secretary cannot be appointed
\nas Head Master of the School.\n<\/p>\n
\t9.On the other hand, Mr.Veera Kathiravan, the learned counsel appearing
\nfor the 3rd and 4th respondents submitted that the School Committee was formed
\nin pursuance of the provision of the Act and Rules and as per the direction of
\nthis Court made in W.P.(MD)No.7585 of 2009 and as per the provisions of Rule 15
\nof the Rules, the Selection Committee has to be constituted for selecting the
\ncandidates for the post of Head Master and as the Secretary of the School
\nCommittee, she has to convene the School Committee and admittedly, no allegation
\nhas been made against the members of the Selection Committee and they are not
\nrelated to the 4th respondent and therefore, the Selection Committee was validly
\nconstituted.\n<\/p>\n
\t10.He further submitted that the Selection Committee evaluated the
\nperformance of three candidates as seen from the page 2,3,4 and 5 of the typed
\nset of papers and after considering the various aspects stated therein, it was
\nfound that the 4th respondent herein has secured highest marks, than the other
\ntwo candidates and all the three members of the Selection Committee had given
\nhighest marks to the 4th respondent and therefore, accepting the recommendation
\nof the Selection Committee, the 4th respondent was appointed as the Head Master.\n<\/p>\n
\t11.Further, he submitted that as per Rule 15(4) of the Rule, for giving
\npromotion merit and ability are to be considered and when merit and ability are
\napparently equal seniority can be considered and therefore, a senior most
\nteacher cannot claim to be appointed as Head Master as of right and G.O.Ms.No.97
\nis only recommendatory in nature and the said G.O. cannot over-ride the
\nprovision of Rules, framed under the statute and hence, the appointment of the
\n4th respondent is perfectly valid and that cannot be interfered with.\n<\/p>\n
\t12.The learned Government Advocate appearing for the respondents 1 and 2
\nsubmitted that a senior most teacher has to be appointed as per the provisions
\nof G.O.Ms.No.97 and in this case, the petitioner is the senior most and he ought
\nto have been considered for appointment for the post of Head Master and further,
\nthe 4th respondent is acting as Secretary by the interim orders of this Court
\npassed in W.P.(MD)No.9279 of 2009 and the first respondent has already withdrawn
\nthe recognition or approval granted to the 4th respondent to act as Secretary,
\nand hence, the appointment of the 4th respondent as Head Master in the 3rd
\nrespondent School was not accepted by the respondents 1 and 2 and the proposal
\nwas returned and hence, the appointment of the 4th respondent is not in
\naccordance with law.\n<\/p>\n
\t13.I have given my anxious consideration to the submission made by both
\nparties.\n<\/p>\n
\t14.Before going into the merits of the case, it is necessary to state
\ncertain admitted facts. The 4th respondent was appointed as Secretary of the
\nSchool Committee and the appointment was also approved by the first respondent,
\nby proceedings, dated 30.05.2002 and at the time, the 4th respondent was not a
\nteacher employed in the 3rd respondent School and subsequently, she was
\nappointed as teacher in the 3rd respondent School and therefore, the first
\nrespondent withdrew the approval granted in favour the 4th respondent as
\nSecretary.  The first respondent also by the same proceedings ordered direct
\npayment as there is no validly appointed Secretary for that School.  This
\nproceedings of the first respondent was challenged in W.P.(MD)No.9279 of 2009
\nand the order of the first respondent was upheld by me in a separate order
\npassed today.  The 2nd respondent also issued the proceedings, dated 13.10.2008
\ndirecting the 3rd respondent herein to appoint the petitioner herein, who is the
\nsenior most teacher to act as Head Master and till such time, resorted to direct
\nthe payment and that was challenged in W.P.(MD)No.9280 of 2008 and both the writ
\nPetition Nos.. 9279 & 9280 of 2008 were heard together by me along with this
\nwrit petition and a common order was passed, dismissing the W.P.(MD)No.9279 of
\n2008 and W.P.(MD)No.9280 of 2008 with certain observations stated therein.
\nTherefore, by reason of the orders passed in W.P.(MD)No.9279 and 9280 of 2008,
\nthe 4th respondent cannot function as Secretary till her appointment as
\nSecretary on the basis of her appointment as Head Master is approved.  I have
\nalso held in the said order that the withdrawal of the approval granted in
\nfavour of T.Amutha as Secretary by the first respondent is valid and having
\nregard to the fact that the 3rd respondent has appointed the 4th respondent as
\nHead Master of the School, she is also eligible to be appointed as Secretary of
\nthe School Committee and till such nomination is made by the School Committee,
\nshe cannot act as a Secretary of the School Committee.  Now the petitioner has
\nchallenged the proceedings of the School Committee dated 24.11.2009 in selecting
\nthe 4th respondent as Head Master of the School.\n<\/p>\n
\t15.Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner
\nfurther submitted that by virtue of the interim orders passed in W.P.(MP)No.9279
\nof 2008, the 4th respondent is continuing as Secretary of the School Committee
\nand the Selection Committee was constituted by the School Committee wherein she
\nalso participated and she also convened the School Committee for selecting the
\nSelection Committee and therefore, the constitution of Selection Committee is
\nvitiated, since the 4th respondent was also one of the candidates, appeared
\nbefore the Selection Committee for the post of Head Master and she also happened
\nto be the Secretary of the School Committee.\n<\/p>\n
\t16.He further submitted that Mr.Veeramani, who is one of the members of
\nthe Selection Committee and also the President of the School Committee, is the
\nbrother of the husband of 4th respondent and therefore, by appointing a relative
\nto a School Committee, there is every likelihood of influence in the selection
\nand hence, the selection process is vitiated and the constitution of the
\nSelection Committee is also vitiated.  He further submitted that as per Rule 13
\nof the Act, the Head Master can be appointed as Secretary of the School
\nCommittee and the converse is not permissible and hence, a person acting as
\nSecretary cannot be appointed as Head Master.\n<\/p>\n
\t17.On the other hand, Mr.Veera Kathiravan, the learned counsel appearing
\nfor the respondents 3 and 4 that the petitioner is estopped from challenging the
\nvires of constitution of Selection Committee after having participated in the
\nselection process without raising any objection and it is not open to the
\npetitioner to question the same after knowing that he was not selected.\n<\/p>\n
\t18.He further submitted that as per Rule 15, senior teachers need not be
\nappointed as Head Master and the School Committee has to appoint persons after
\nconsidering the merit and ability and therefore, Selection Committee after
\nconsidering the various aspects as stated in their report came to the conclusion
\nthat the 4th respondent is the most suitable person and recommended her
\nappointment and that was approved by the 3rd  respondent and there was nothing
\nillegal.\n<\/p>\n
\t19.Therefore, we will have to see whether the constitution of the
\nSelection Committee is valid as contended by the learned counsel appearing for
\nthe petitioner and whether there is any element of bias in the appointment of
\nthe 4th respondent and whether the petitioner is estopped from challenging the
\nconstitution of Selection Committee after appearing before the Selection
\nCommittee without raising any protest or objection?\n<\/p>\n
\t20.In this connection, it is useful to quote the following passage from
\nthe Principles of Administrative Law by Jain & Jain, Vol.I, 6th edn. page 565
\nunder the caption “Group Decision” – “Where a decision is taken by a group of
\npersons, such as a board or Committee, bias of one member affects the validity
\nof the group decision and it does not matter that the biased member did not
\nactively participate in the decision, or that he remained silent and did not
\nseek to influence the decision of other members in the group. The reason is that
\nin such a case, the question is not whether there was actual bias or not but
\nwhether there was a reasonable likelihood of bias. The Supreme Court in the
\ncelebrated judgment of A.K.Kraipak reported in AIR 1970 SC 150= 1969(2) SCC 262
\nsaid that in a group decision, each member of the group is bound to influence
\nthe other.  This view has been reiterated since then in a number of cases,  AIR
\n1987 SC 71 = (1986)4 SCC  537, Institute of Chartered Accountant of India vs.
\nL.K.Ratna. In Sarana,<\/a> (1976)3 SCC 585= 1976 AIR SC 2428, the Supreme Court
\nreiterated the proposition that bias on the part of a member of the Selection
\nCommittee for filling certain posts may vitiate it recommendations.  On this
\npoint, the Court had stated: “In deciding the question of bias, human
\nprobabilities and ordinary course of human conduct have to be taken into
\nconsideration.  In a group deliberation and decision like that of a Selection
\nBoard, the members do not function as computers, Each member of the group or
\nboard is bound to influence the others, more so if the member concerned is a
\nperson with special knowledge.  His bias is likely to operate in a subtle
\nmanner.”\n<\/p>\n
\tOne member can subtly influence the minds of the other members in his
\nfavour.  In Rattan Lal Sharma, [AIR 1993 SC 2155 = 1993(2) LLJ 549]  the Supreme
\nCourt quashed a group decision on Account of the bias of one of its members.
\n\tWhen a Selection Committee to select persons for civil posts includes as a
\nmember the son-in-law of a selected candidate (while some of his seniors were
\nnot selected), the selections were quashed on the ground of bias, even though
\nthe Committee was presided over by an independent person, e.g. the Chairman of
\nthe Union Public Service Commission [D.K.Khanna v. U.O.I, AIR 1973 HP30].  The
\ndoctrine of bias, the court held, would apply in case the relationship between
\nthe adjudicator and a party before him was so closed as to give rise to the
\nreasonable likelihood of the adjudicator espousing the cause of the party as his
\nwon.  In the instant case, the relationship between the Committee member and the
\ncandidate selected was sufficiently close to bring the doctrine against bias
\ninto play. ” The nearness of the relationship could reasonably give the
\nimpression to the other candidates that there was a ‘real likelihood’ of the
\nmember espousing the case of his father-in-law”.  The court emphasised that the
\nfacts that the member concerned remained silent in the Committee meeting, or
\nthat he did not influence the members of the Committee, or that the Committee
\nwas aware of the member’s  relationship with the candidate, were of no
\nconsequence.  The law was not concerned with whether the member concerned in
\nfact participated in the consideration of his father-in law’s candidature, or
\nspoke to the prejudice of other candidates.  “The law is concerned with
\ndetermining whether there was a reasonable likelihood of bias”.  In a group
\ndiscussion, each member of the group influences the other. The selection list
\nwas therefore quashed as, in the court’s opinion, the petitioners could have
\nlegitimately believed that there was a “reasonable likelihood of bias” in favour
\nof the candidate selected to the deteriment of the petitioners because of the
\npresence of his son-in-law on the Committee. When the mother-in-law of a
\ncandidate for post-graduate course in a medical college was a member of the
\nSelection Committee, his selection was quashed. A similar question has now been
\nconsidered in some detail by the Supreme Court in Ashok Kumar Yadav v. Haryana
\n[AIR 1987 SC 454]. The basic question raised in the case was; when a near
\nrelation of a member of a Selection Committee is a candidate, what should the
\nmember do? should he desist from interviewing all the candidates or only his
\nrelation? Taking a broader view of the matter, the court has laid down the
\nfollowing proposition: if a Selection Committee is constituted for the purpose
\nof selecting candidates on merits, and one of its members is closely related to
\na candidate appearing for the selection, such member should not merely withdraw
\nfrom participation in the interview of the candidate related to him but he must
\nwithdraw altogether from the entire selection process, otherwise all selection
\nwould be vitiated on account of reasonable likelihood of bias affecting the
\nselection process.\n<\/p>\n
\tIn Mohapatra & Co. v. State of Orissa<\/a> [AIR 1984 SC 1572](1984 (4) SCC\n<\/p>\n
103), the Supreme Court applied the same principle.  The Court ruled that mere
\nnon-participation in the discussion by an interested member or even his
\nwithdrawal from deliberations of the Committee when his books are being
\nconsidered for selection, would not suffice because the evil of quid pro quo
\ncannot be eliminated by this. “Members deliberating would bear in mind that the
\nturn for selecting their books would also come and the concerned member who had
\nnot participated or had withdrawn would then be favourably inclined to select
\ntheir books.”\n<\/p>\n
Therefore, it is seen from the above principles laid down by the Honourable
\nSupreme Court that  even in the case of non-participation in the selection
\nprocess by an interested member,the element of bias cannot be eliminated and
\nsuch constitution of the Committee cannot be upheld.\n<\/p>\n
\t21.The Honourable Supreme Court in the judgment reported in AIR 1957 SCC
\n425, in the case of Manak Lal, Advocate vs. Dr.Prem Chan Singhvi and others<\/a>  has
\nheld as follows: “It is well settled that every member of a tribunal that is
\ncalled upon to try issues in judicial or quasi-judicial proceedings must be able
\nto act judicially; and it is of the essence of judicial decisions and judicial
\nadministration that judges should be able to act impartially, objectively and
\nwithout any bias. In such cases the test is not whether in fact a bias has
\naffected the judgment; the test always is and must be whether a litigant could
\nreasonably apprehend that a bias attributable to a member of the tribunal might
\nhave operated against him in the final decision of the Tribunal.  It is in this
\nsense that it is often said that justice must not only be done but must also
\nappear to be done.\n<\/p>\n
\t22.This case was followed in all the subsequent cases referred to above
\nand therefore, from the above judgments, if one of the candidate is also a
\nmember of the Committee, even though that candidate did not participate in the
\nselection process or withdrew from the constitution of the Selection Committee,
\nthe elements of bias can be attributed and their selection cannot be upheld.
\nBut in this case, even though the petitioner was aware that the Selection
\nCommittee was constituted by the School Committee wherein the 4th respondent is
\nacting as Secretary and her relatives are members of the School Committee and
\nher husband and his eldest brother,is also acting as President of the School
\nCommittee, he did not raise any objection  to the constitution of Selection
\nCommittee and participated in the interview conducted by the Selection Committee
\nand after knowing that he was not selected, questioned the constitution of
\nSelection Committee in this writ petition.\n<\/p>\n
\t23.Further, Mr.G.R.Swaminathan, the learned counsel appearing for the
\npetitioner made it clear that it is not the case of the petitioner that the
\nmembers of the Selection Committee are biased towards the 4th respondent  and
\naccording to him, the 4th respondent being the Secretary of the School Committee
\nought not to have participated in the constitution of the Selection Committee
\nand the petitioner, who is also a member of the School Committee withdrew
\nhimself from participating in the meeting convened for  the selection of
\nSelection Committee and likewise, the 4th respondent ought to have rescued
\nherself from participating in the meeting, while selecting the Selection
\nCommittee, but the 4th respondent participated in the said meeting and hence,
\nthe constitution of Selection committee cannot be considered to be a valid one.\n<\/p>\n
\t24.In this case, we will have to see the role of the 4th respondent.
\nAdmittedly, the 4th respondent is the Secretary of the School Committee and as a
\nSecretary, she has to discharge certain functions.  It has been held in the
\njudgment reported in 2006(3) SCC 276,  [State of U.P. vs. Sheo Shanker Lal
\nSrivastava and others<\/a>] as follows:\n<\/p>\n
\t13.It is true that the principle of natural justice is based on two
\npillars; (i) nobody shall be condemned without hearing; and (ii) nobody shall be
\na judge in his own cause.\n<\/p>\n
\t14.It is, however, well known that the principles of natural justice can
\nbe excluded by a statute.  They can also be waived.\n<\/p>\n
\t15.In a case where doctrine of necessity is applicable compliance with the
\nprinciples of natural justice would be excluded.\n<\/p>\n
\t16.Referring to the doctrine of necessity, Sri William Wade in his
\nAdministrative Law stated:\n<\/p>\n
\t“But there are many cases where no substitution is possible, since no one
\nelse is empowered to act.  Natural justice then has to give way to necessity;
\nfor otherwise there is no means of deciding and the machinery of justice or
\nadministration will break down.”\n<\/p>\n
\tIt was further stated: ” In Administrative cases the same exigency may
\narise.  Where the statute empowers a particular minister or official to act, he
\nwill usually be the one and only person who can do so.  There is then no way of
\nescaping the responsibility, even if he is personally interested.  Transfer of
\nresponsibility is, indeed, a recognised type of ultra vires.  In one case it was
\nunsuccessfully argued that the only minister competent to confirm a compulsory
\npurchase order for land for an airport had disqualified himself by showing bias
\nand that the local authority could only apply for a local Act of Parliament.\n<\/p>\n
Therefore, by applying doctrine of necessary, the 4th respondent as the
\nSecretary of the School Committee has to necessarily convene the School
\nCommittee meeting and merely because she has participated in the meeting, while
\nselecting the Selection Committee it cannot be stated that she could have
\ninfluenced the other members while selecting the Selection Committee.\n<\/p>\n
\t25.As rightly contended by the learned counsel appearing for the
\nrespondents 3 and 4, Mr.Veera Kathiravan, the petitioner having participated in
\nthe selection process without raising objection has waived his right to
\nchallenge the right of the constitution of the Selection Committee and is
\nestopped from the constitution of the Selection Committee.\n<\/p>\n
\t26.In the judgment reported in AIR 1957 SC 425, in the case of Manak Lal,
\nAdvocate vs. Dr.Prem Chand Singhvi and others<\/a>, it has been held as follows:\n<\/p>\n
\t“The next question which falls to be considered is whether it was open to
\nthe appellant to take this objection for the first time before the High Court.
\nIn other words, has he or has he not waived his objection to the presence of
\nShri Chhangani in the tribunal?  Shri Daphtary does not seriously contest the
\nposition that the objection could have been effectively waived.  The alleged
\nbias in a member of the tribunal does not render the proceedings invalid if it
\nis shown that the objection against the presence of the member in question had
\nnot been taken by the party even though the party knew about the circumstances
\ngiving rise to the allegations about the alleged bias and was aware of his right
\nto challenge the presence of the member in the tribunal.  It is true that waiver
\ncannot always and in every case be inferred merely from the failure of the party
\nto take the objection.  Waiver can be inferred only if and after it is shown
\nthat the party knew about the relevant facts and was aware of his right to take
\nthe objection in question.  As Sir John Romilly, M.R. has observed in Vyvyan v.
\nVyvyan (1861)30  Beav 65 at p.74; 54 E.R.813 at p. 817 (E) waive or
\nacquiescence, like election, presupposes that the person to be bound is fully
\ncognizant of his right and that being so, he neglects to enforce them, or
\nchooses one benefit instead of another, either but not both, of which he might
\nclaim.  “If in the present case, it appears that the appellant knew all the
\nfacts about the alleged disability of Shri Chhangani and was also aware that he
\ncould effectively request the learned Chief Justice to nominate some other
\nmember instead of Shri Chhangani and yet did not adopt that course, it may well
\nbe that he deliberately took a chance to obtain a report in his favour from the
\ntribunal and when he came to know that the report had gone against him he
\nthought better of his rights and raised this point before the High Court for the
\nfirst time.  In other words, though the point of law raised by Shri Daphtary
\nagainst the competence of the tribunal be sound it is still necessary for us to
\nconsider whether the appellant was precluded from raising this point before the
\nHigh Court by waiver or acquiescence.\n<\/p>\n
\t“9.From the record it is clear that the appellant never raised this point
\nbefore the tribunal and the manner in which this point was raised by him even
\nbefore the High Court is somewhat significant. The first ground of objection
\nfiled by the appellant against the tribunal’s report was that Shri Chhangani had
\npecuniary and personal interest in the complainant Dr.Prem Chand.  The learned
\nJudges of the High Court have found that the allegations about the pecuniary
\ninterest of Shri Chhangani in the present proceedings are wholly unfounded and
\nthis finding has not been challenged before us by Shri Dephtary.  The learned
\nJudges of the High Court have also found that the objection was raised by the
\nappellant before them only to obtain an order for a fresh enquiry and thus gain
\ntime.  It may be conceded in favour of Shri Dephtary that the judgment of the
\nHigh Court does not in terms find against the appellant on the ground of waiver
\nthough that no doubt appears to be the substance of their conclusion.  We have,
\nhowever, heard Shri Daphtary’s case on the question of waiver and we have no
\nhesitation in reaching the conclusion that the appellant waived his objection
\ndeliberately and cannot now be allowed to raise it.  Shri Daphtary does not
\ncontend that at the material time the appellant did not remember the fact that
\nShri Chhangani had appeared for Dr.Prem Chand in the criminal proceedings.
\nIndeed such a plea cannot be raised by the appellant in view of the affidavit
\nwhich the appellant sought to place before us in the present appeal. Under this
\naffidavit, the appellant’s case appears to be that until he met his advocate
\nShri Murli Manohar for filing objections to the report of the tribunal, the
\nappellant did not know that Shri Chhangani was legally disqualified from acting
\nas a member of the tribunal.  It is obvious that this ground necessarily implies
\nthat the appellant knew about the facts giving rise to the alleged
\ndisqualification of Shri Chhangani to act as a member of the tribunal.  In
\nsubstance the contention is that though the appellant knew that Shri Chhangani
\nhad appeared for Dr. Prem Chand in the criminal proceedings in question,  he was
\nnot aware that in consequence, Shri Chhangani was disqualified to act as a
\nmember of the tribunal. It is this limited aspect of the matter which is pressed
\nbefore us by Shri Daphtary.  Shri Daphtary contends and no doubt rightly that if
\nwe are satisfied that the appellant did not know about the true legal position
\nin this matter and his rights arising therefrom, his failure to challenge the
\nappointment of Shri Chhangani on the tribunal would not raise an effective plea
\nof waiver.  However, in our opinion, it is very difficult to accept Shri
\nDaphtary’s argument that his client did not know that true legal position or his
\nrights until he met Shri Murli Manohar.  No doubt the appellant is a junior at
\nthe Bar but even so he can claim ten year’s standing at the Bar.  Besides, he
\nhad the assistance of a lawyer in defending him in the present proceedings and
\nit appears extremely difficult to assume that neither the appellant nor his
\nlawyer knew that the presence of Shri Chhangani in the tribunal could be
\neffectively challenged by them. We are disposed to think that even a layman, not
\nfamiliar with legal technicalities and equitable principles on which this
\ndoctrine of disability has been based would have immediately apprehended that
\nthe lawyer who had appeared for Dr.Prem Chand was authorised to sit in judgment
\nover the conduct of the appellant and that might cause embarrassment to the
\nappellant and might lead to prejudice against him.  From a purely common-sense
\npoint of view of a layman, the position was patently awkward and so, the
\nargument that the appellant was not conscious of his legal rights in this matter
\nappears to us to be an after-thought.  Since the appellant was driven to adopt
\nthis untenable position before the High Court is seeking to raise this point for
\nthe first time at that stage, we are not surprised that the High Court took the
\nview that the plea had been taken late in order to gain time and to secure a
\nfresh enquiry in the matter.  Since we have no doubt that the appellant knew the
\nmaterial facts and must be deemed to have been conscious of his legal rights in
\nthat matter, his failure to take the present plea at the earlier stage of the
\nproceedings creates an effective bar of waiver against him.  It seems clear that
\nthe appellant wanted to take a chance to secure a favourable report from the
\ntribunal which was constituted and when he found that he was confronted with an
\nunfavourable report, he adopted the device of raising the present technical
\npoint.”\n<\/p>\n
\t27.Further, in the judgment reported in 1976(3) SCC 585, Dr.G.Sarana vs.
\nUniversity of Lucknow and others<\/a>, the Honourable Supreme Court has held as
\nfollows: “We do not, however, consider it necessary in the present case to go
\ninto the question of the reasonableness of bias or real likelihood of bias as
\ndespite the fact that the appellant knew all the relevant facts, he did not
\nbefore appearing for the interview or at the time of the interview raise even
\nhis little finger against the constitution of the Selection Committee.  He seems
\nto have voluntarily appeared before the  Committee and taken a chance of having
\na favourable recommendation from it. Having done so, it is not now open to him
\nto turn round and question the constitution of the Committee.”  This is also
\nfollowed in the judgment reported in 1992(2)SCC 193 [Bishan Dass Bagha
\nvs.Government of Punjab and others ].\n<\/p>\n
Therefore, The petitioner having participated in the interview conducted by the
\nSelection Committee cannot question the constitution of the Selection Committee,
\nafter knowing that he was not selected and hence, as held by the Honourable
\nSupreme Court, the petitioner cannot challenge the constitution of the Selection
\nCommittee and according to me, the Selection Committee was validly constituted
\nas per the provisions of the rules and the 4th respondent was selected on the
\nbasis of the evaluation done by the Selection Committee and hence, the
\nappointment of the 4th respondent is perfectly valid and the same cannot be
\nchallenged by the petitioner.\n<\/p>\n
\t28.In the result, the writ petition is dismissed.  Consequently, connected
\nMiscellaneous Petition is closed. No costs.\n<\/p>\n
er<\/p>\n
To,<\/p>\n
 1.District Elementary Educational Officer,
\n   Thanjavur District,
\n   Thanjavur.\n<\/p>\n
2.The Assistant Elementary Educational Officer,
\n   Kumbakonam.\n<\/p>\n
3.The Government Advocate,
\n   Madurai Bench of Madras High Court,
\n   Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court N.Subramanian vs District Elementary Educational … on 11 June, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-13021","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nN.Subramanian vs District Elementary Educational ... on 11 June, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/n-subramanian-vs-district-elementary-educational-on-11-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"N.Subramanian vs District Elementary Educational ... on 11 June, 2010 - 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