KRISHNADATT AWASTHY v. STATE OF MADHYA PRADESH & ORS

Citation: (1996) 3 SCC 364

Court: Rajasthan High Court (Jaipur Bench)

Bench: Ed. Note: Hon'ble Mr. Justice J.K. Maheshwari and Hon'ble Mr. Justice K.

Case summary

Challenged to, before the Collector, by one of the aspirant - Only officers ex-officio impleaded as parties selection process vitiated - Said order upheld in Revision - Writ petition thereagainst, dismissed by the

Judgment text

SUPREME COURT OF INDIA Ed. Note: Hon'ble Mr. Justice J. K. Maheshwari and Hon'ble Mr. Justice K. v. Viswanathan pronounced Civil Appeal No. 4806 of 2011 [2024] 4 S. C. R. 151 : 2024 INSC 264 Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. (Civil Appeal No. 4806 of 2011) 04 April 2024 [J. K. Maheshwari* and K. V. Viswanathan,* JJ. ] Issue for Consideration Matter pertains to the selection and appointment of appellants and four others to the post of Shiksha Karmi Grade wherein the selection process, if vitiated by bias, candidates being close relatives of the members of selection committee and non-joinder of parties in the initial appeal, if violative of the natural justice.

Headnotes Service law - Selection and appointment - Selection process, if vitiated by bias, the candidates being close relatives of the members of selection committee - Non-joinder of parties in the initial appeal, if violative of the natural justice - Post of Shiksha Karmi Grade - Selection and appointment of 249 candidates including ten appellants and four other candidates, who were close relatives of the members of selection committee - Challenged to, before the Collector, by one of the aspirant - Only officers ex-officio impleaded as parties and not the appellants and the members of the selection committee - Cancellation of selection of appellants and four others since the members of the selection committee being their relatives gave them benefit thus, selection process vitiated - Said order upheld in Revision - Writ petition thereagainst, dismissed by the Single Judge of the High Court holding that the appellants were afforded ample opportunity of hearing thus, not joining them as party at the first instance before the Collector, should not prejudice them and plea of violation of principle of natural justice not justified - Division Bench also dismissed the appeal - Interference with: Held: (per Maheshwari, J.

) 'Rule against bias' proved as reasonable likelihood of bias was fully established irrefutably - * Author Ed. Note: Hon'ble Mr. Justice J. K. Maheshwari and Hon'ble Mr. Justice K. V. Viswanathan pronounced separate Judgments. In view of divergent views, vide a common order, it was inter alia directed that the matter be placed before Hon'ble the Chief Justice of India for constitution of a larger Bench.

152 Without showing prejudice mere non-joinder even at initial stage does not violate the natural justice doctrine - Action of appellants of not controverting their relationship with the parties and not demonstrating the manner in which they have been prejudiced before the revisional authority and the Single Judge and Division Bench of High Court, their representation before the Collector would not have improved their case or compelled the Collector to arrive at a different finding - Plea of non-impleadment is a useless formality and the court should not entangle itself in procedural complexities - In view of the principle of prejudice, the judgment passed by the Single Judge as confirmed in writ appeal reaffirming the judgment of the Collector and Commissioner, setting aside the selection of the appellants does not suffer from any infirmity, warranting interference of this Court - Held: (per Viswanathan, J.

) When an unsuccessful candidate challenged the selection process, where the specific grievance was against 14 candidates under the category of relatives and the overall figure was 249, at least the candidates against whom specific allegations were made and who were identified ought to have been given notices and made a party - Courts below makes no reference to resolution providing for recusal of committee members who had their close relatives appearing for the interview - Furthermore, the principle of prejudice not applicable since there was a complete denial of opportunity - Breach of principles of natural justice in the proceedings before the Collector at the original stage did not stand cured on account of the proceedings before the revisional authority - Given a chance before the Collector perhaps the appellants would have met each and every objection of the sole complainant - For the failure of complainant and the Collector, the appellants cannot be made to pay - By virtue of interim orders, the appellants are discharging their duties for the past twenty five years, thus, not in the interest of justice to remand the matter for a fresh enquiry - Impugned judgment of the Division Bench set aside - Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995 - Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 - Madhya Pradesh Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997 [Paras 35, 43, 46, 60, 66, 75-77] - Per Court: In view of the divergent views, issuance of directions to the Registry to place the matter before Hon'ble the Chief Justice of India for constitution of a larger Bench.

Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. Case Law Cited In the Judgment of J. K. Maheshwari, J. State Bank of Patiala and others v. S. K. Sharma[1996] 3 SCR 972: (1996) 3 SCC 364; State of Uttar Pradesh v. Sudhir Kumar Singh & Ors. [2020] 13 SCR 571: (2020) SCC Online SC 847- relied on. Javid Rasool Bhat & Ors. v. State of Jammu and Kashmir & Ors. [1984] 2 SCR 582: (1984) 2 SCC 631 held inapplicable. A. K. Kraipak and others v. Union of India and others [1970] 1 SCR 457 : (1969) 2 SCC 262; J. Mohapatra & Co. & Anr. v. State of Orissa & Anr. [1985] 1 SCR 322 : (1984) 4 SCC 103; Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. [1985] Supp. 1 SCR 657 : (1985) 4 SCC 417; Kirti Deshmankar v. Union of India & Ors. [1990] Supp. 1 SCR 355: (1991) 1 SCC 104; Gurdip Singh v. State of Punjab & Ors. (1997) 10 SCC 641; Utkal University v. Nrusingha Charan Sarangi [1999] 1 SCR 19 : (1999) 2 SCC 193; G. N. Nayak v. Goa University [2002] 1 SCR 636: (2002) 2 SCC 712; Govt. Of T. N. v.

Munuswamy Mudaliar and Anr. (1988) Supp SCC 651 : AIR (1988) SC 2232; Bihar State Mineral Development Corporation v. Encon Builders (I) (P) Ltd. [2003] Supp. 2 SCR 812: (2003) 7 SCC 418; S. Parthasarathi v. State of Andhra Pradesh [1974] 1 SCR 697: (1974) 3 SCC 459; Dr. G. Sarana v. University of Lucknow and others [1977] 1 SCR 64 : (1976) 3 SCC 585; Sk. Golap and others v. Bhuban Chandra Panda and others (1990) SCC Online Cal 264; Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and others [2000] Supp. 4 SCR 248: (2001) 1 SCC 182; Ashok Kumar Sonkar v. Union of India & Ors. [2007] 3 SCR 95 : (2007) 4 SCC 54; H. P. Transport Corpn. v. K. C. Rahi [2008] 3 SCR 97: (2008) 11 SCC 502; Jankinath Sarangi v. State of Orissa (1969) 3 SCC 392; M/s. Escorts Farms (Ramgarh) Ltd. v. Commissioner Kumaon Division Nainital U. P. & Ors. [2004] 2 SCR 543 : (2004) 4 SCC 281; Canara Bank v. Debasis Das [2003] 2 SCR 968: (2003) 4 SCC 557 - referred to. 154 R v. Rand (1866) LR 1 QB 230; R v.

Sussex JJ ex parte McCarthy (1924) 1 KB 256; R v. Camborne JJ ex parte Pearce (1955) 1 QB 41; Metropolitan Properties Co. (FGC) Ltd. v. Lannon (1969) 1 QB 577; Hannam v. Bradford Corporation (1970) 2 All ER 690; R v. Gough (1993) AC 646; Ridge v. Baldwin (1964) AC 40; Russell v. Duke of Norfolk (1949) 1 AII ER 109 (CA) - referred to. In the Judgment of K. V. Viswanathan, J. State Bank of Patiala and others v. S. K. Sharma[1996] 3 SCR 972: (1996) 3 SCC 364 - held inapplicable. Shri Farid Ahmed Abdul Samad and Another v. The Municipal Corporation of the City of Ahmedabad and Another [1977] 1 SCR 71 : (1976) 3 SCC 719;Institute of Chartered Accountants of India v. L. K. Ratna and Others [1986] 3 SCR 1049 : (1986) 4 SCC 537;United Planters Association of Southern India v. K. G. Sangameswaran and Another [1997] 2 SCR 756 : (1997) 4 SCC 741; Jayantilal Ratanchand Shah v. Reserve Bank of India and Others [1996] 4 Suppl. SCR 443 : (1996) 9 SCC 650 - relied on. A. K. Kraipak and Others v.

Union of India and Others [1970] 1 SCR 457 : (1969) 2 SCC 262; Daffodills Pharmaceuticals Limited and Another v. State of Uttar Pradesh and Another [2019] 15 SCR 125 : (2019) INSC 1366 : (2020) 18 SCC 550;Javid Rasool Bhat and Others v. State of Jammu and Kashmir and Others [1984] 2 SCR 582 : (1984) 2 SCC 631;Chairman State Bank of India and Another v. M. J. James [2021] 7 SCR 373 : (2022) 2 SCC 301 : 2021 INSC 732;Kirti Deshmankar v. Union of India & Ors. [1990] Supp. 1 SCR 355 : (1991) 1 SCC 104; J. Mohapatra & Co. & Anr. v. State of Orissa & Anr. [1985] 1 SCR 322 : (1984) 4 SCC 103; Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. [1985] Supp. 1 SCR 657 : (1985) 4 SCC 417; J. S. Yadav v. State of Uttar Pradesh and Another [2011] 5 SCR 460 : (2011) 6 SCC 570; Prabodh Verma and Others v. State of Uttar Pradesh and 34 Others [1985] 1 SCR 216 : (1984) 4 SCC 251; Ranjan Kumar and Others v. State Krishnadatt Awasthy v. State of Madhya Pradesh & Ors.

of Bihar and Others (2014) 16 SCC 187 : 2014 INSC 276; Union of India and Others v. G. Chakradhar (2002) 5 SCC 146;Abhishek Kumar Singh v. G. Pattanaik and Others [2021] 5 SCR 305 : (2021) 7 SCC 613 : 2021 INSC 305; Charan Lal Sahu v. Union of India [1989] Suppl. 2 SCR 597 : (1990) 1 SCC 613;S. L. Kapoor v. Jag Mohan and Others [1981] 1 SCR 746 : (1980) 4 SCC 379; The State of Uttar Pradesh v. Mohammad Nooh [1958] 1 SCR 595; Olga Tellis and Others v. Bombay Municipal Corporation and Others [1985] Supp. 2 SCR 51 : (1985) 3 SCC 545; The Chairman Board of Mining Examination and Chief Inspector of Mines and Another v. Ramjee [1977] 2 SCR 904 : (1977) 2 SCC 256; B. N. Nagarajan and Ors. v. State of Mysore and Ors. [1966] 3 SCR 682;Jaswant Singh Nerwal v. State of Punjab and Others [1991] 1 SCR 411 : (1991) Supp 1 SCC 313; M. C. Mehta v. Union of India [1999] 3 SCR 1173 : (1999) 6 SCC 237; Aligarh Muslim University and Others v. Mansoor Ali Khan [2000] Supp.

2 SCR 684 : (2000) 7 SCC 529 - referred to. John v. Rees and Others [1969] 2 All ER 274; Ridge v. Baldwin (1964) AC 40; Leary v. National Union of Vehicle Builders [1970] 2 All ER 713;Ferd Dawson Calvin v. John Henry Brownlow Carr & Ors. (1979) 2 WLR 755;Lloyd and Others v. McMahon [1987] 1 AC 625 - referred to. List of Acts Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995; Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993; Madhya Pradesh Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997; Constitution of India.

List of Keywords Selection; Appointment; Selection process; Bias; Members of selection committee; Non-joinder of parties; Natural justice; Shiksha Karmi Grade-III in Janpad Panchayat; Officers ex-officio; Non-impleadment as parties; Opportunity of hearing; Violation of principle of natural justice; Reasonable likelihood of bias; Rule against bias; Violation of audi alteram partem; Procedural complexities; Unsuccessful candidate; Notices; Definition of 156 relative; Recusal of committee members; Principle of prejudice; Judicial review proceedings; Review of the decision-making process; Interim orders; Divergent views; Constitution of a larger Bench. Case Arising From CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4806 of 2011 From the Judgment and Order dated 15. 12. 2008 of the High Court of M. P at Jabalpur in WA No. 892 of With Civil Appeal Nos. 4807, 4808, 4809 of 2011 Appearances for Parties Neeraj Shekhar, Ashutosh Thakur, Dr. Sumit Kumar, Advs. for the Appellant.

Mrinal Gopal Elker, Shashwat Parihar, Avadhesh Kumar Singh, Rajender Kumar Singh, Ms. Suvarna Singh, Sanjay Kumar Visen, Advs. for the Respondents. Judgment / Order of the Supreme Court Judgment J. K. Maheshwari J. 1. After perusal of the judgment and view expressed by esteemed brother Justice K. V. Viswanathan, in the facts of this case, I am not in a position to agree with the reasoning and conclusions as drawn by him, for which detailed reasons supporting my view is in succeeding paragraphs. 2. As per the facts of the case, the controversy in the present case revolves around selection and appointment for the post of Shiksha Karmi Grade-III in Janpad Panchayat Gaurihar, District Chhatarpur in the State of Madhya Pradesh which relates back to the year 1998.

The appellants who are ten (10) in number and four (4) other candidates, in total fourteen (14) candidates who were close relatives of the members of selection committee, had been placed in the final selection list of 249 Shiksha Karmi Grade-III. For ready reference the appellants and their relations are described in a tabular form as under: - Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. Sl. Candidate Committee Relationship No. Member 1. Krishnadatt Awasthy Pushpa Dvivedi Maternal (Chairman) Nephew 2. Shyama Dvivedi Pushpa Dvivedi Sister-in-law (Chairman) (Nanad) 3. Prabha Dvivedi Pushpa Dvivedi Sister-in-law (Chairman) (Devrani) 4. Rekha Avasthi Pushpa Dvivedi Niece (Chairman) 5. Prabhesh Kumari Pushpa Dvivedi Niece (Chairman) 6. Devendra Awasthi Pushpa Dvivedi Nephew (Chairman) (Sister's son) 7. Sumer Singh Swami Singh Son (Member) 8. Ramrani Singh Swami Singh Daughter in law (Member) 9. Gita Rawat Pushpa Dvivedi Sister (Chairman) 10.

Rita Dwivedi Pushpa Dvivedi Sister of Vibha (Chairman) who is Devrani of Chairman Thus, from the table above, the relationship of appellants with the members of the selection committee is apparent and un-disputed. 3. It is not inapposite to mention that at the previous stage of selection, after preparation of the select list of Shiksha Karmi Grade-III by Janpad Panchayat, Gaurihar, the same was challenged by one Kunwar Vijay Bahadur Singh Bundela by filing an appeal before the Collector, District Chhatarpur, who vide order dated 31. 08. 1998 quashed the selection list and remitted the matter for fresh selection. Pursuant to the directions, fresh selection was conducted and the final selection list consisting of 249 candidates including the names of appellants and four others was published on 16. 09. 1998. As per the said select list appointment orders were issued on 17. 09. 1998 appointing the candidates including the present appellants.

Being 158 aggrieved by the selection and appointment of the appellants who were near relatives of members of the selection committee and non-selection of Smt. Archana Mishra who was an aspirant, filed an appeal before the Collector, District Chhatarpur on various grounds including the allegations as quoted in paragraph 14 of the order passed by esteemed brother. It is not in dispute that the present appellants were not impleaded as parties in the appeal before the Collector, though Chief Executive Officer Janpad Panchayat, Block Development Education Officer and the President of the Education Committee were arrayed as parties. 4. On issuing notice in the said appeal, the counter affidavit was filed by the Chief Executive Officer, Janpad Panchayat, attaching the certificate given by the Sarpanch of the Panchayat acknowledging the relationship of the selected/appointed candidates with the members of selection committee.

As per the material placed, the findings recorded by the Collector are relevant, which is reproduced as under: - "3. ...... So far as the question of selection of the relatives of the members of Select Committee is concerned, it is proved that the members of the Committee have selected their relatives and the same is against the principles of law. The facts given in the appeal have been admitted by the Respondent Janpad Panchayat in its Reply that the Committee President Smt. Pushpa Dvivedi's sister-in-law (Nanad) Shyama Dvivedi daughter of Shiv Dass Dvivedi, her sister-in-law (Devrani) Vibha Dvivedi wife of Kailash Dvivedi, two sisters of the Devrani (Vibha Dvivedi) of the Committee President namely Kum. Rashmi Dvivedi and Km. Rita Dvivedi have been appointed at Serial No. 9 and 4 of the Select List. The certificate of Sarpanch has been attached by the Respondent as evidence in this regard.

The Respondent has also admitted that Devender Kumar Avasthi son of Brij Bhushan Avasthi, Rekha Awasthi, daughter of Brij Bhushan Awasthi, Pravesh Kumar, daughter of Brij Bhushan Awasthi are also the maternal niece of the Chairman of the Selection Committee. Their Selection No. is 176 and 30 respectively. Chief Executive Officer has also stated in his reply that Summer Singh, son of other member Swami Singh Sengar, daughter in law Ram Rani, wife of Rudra Pratap Singh, nephew Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. Rajesh Singh Chauhan, son Som Prakash Singh have also been selected. Facts which have been admitted by the Chief Executive Officer in his reply, they are reliable. Chief Executive Officer has admitted in his reply Exh. -A that selection of Badri Prasad, son of Bhagwat Prasad has been made. He has been allocated 9 marks for experience, but the Experience Certificate is not found enclosed with his application.

It is also proved from the reply submitted by District Panchayat that selection of Shri Krishan Dutt Awasthi, son of Sita Ram Awasthi has been made at No. 64. He is also the maternal nephew of the Chairman and at Appointment Order No. 90 selection of Geeta Rawat, - Ganga Prasad Rawat has been made. She is the real sister of Chairperson. Committee of District Panchayat has made the selection of his relatives in contravention of various Sections of MP Panchayat Raj Act. It has been restricted in Section 40(C) of Panchayat Raj Act that any of the office bearers shall not cause financial gain to his relatives.

As per Section 40(C), act of any of the office bearers of Panchayat to get job for his any relative in Panchayat through his direct or indirect influence or to act to cause financial benefit to any of his relatives like carrying out of any work of the Panchayat through any kind of contract shall amount to gross negligence towards duties under the above Section and in such circumstances, if it is done, then office bearers of the Panchayat could be terminated. In Section 100 of the Act, acquisition of any interest by any member office bearer or employee directly or indirectly in any contract or any employment made is strictly prohibited. In the present case, members of the Committee of the District Panchayat have made the selection of their relatives in order to cause benefit to them in the entire selection procedure, which is contrary to the principles settled by the law. Any person cannot be the judge for himself.

There is a principle of natural justice that judge should see all persons with same eye. Selection of the relatives of the members by the members has definitely caused the discrimination with other members. In such circumstances, selection of the relatives of the District Panchayat is not lawful, which is liable to be cancelled... 160 As per the facts given in the case like respondents have admitted in the above paras that selection of the relatives of the members has been made in illegal manner, selection of these relatives is cancelled and the appointment so made is terminated. " (emphasis supplied) From the above observation it can be safely perceived that the members of the selection committee appointed the appellants who were their relatives and had given benefit to them which is arbitrary and discriminatory therefore vitiated. 5.

The appellants assailed the said order of Collector by filing revision under Section 5 of the Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995 (hereinafter referred to as "A&R Rules"). It was submitted that quashment of their appointment by the Collector without joining them and affording an opportunity is in violation of the Principle of Natural Justice. The appellants in the memo of revision had not denied their relationships with the members of the selection committee and only averred that "it is the wrong allegation that the appointments of the petitioners have been cancelled by the Collector, Chhatarpur on the charge of being relatives. " 6. The revisional authority (Commissioner Revenue) dismissed the revision vide order dated 14. 03. 2000, in para (6) of the order it was observed that the selection of the appellants is contrary to Section 40(C) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereafter referred to as 'Adhiniyam').

The plea of non-joinder and not affording an opportunity of hearing was not found appealingbecausethe relationship of the appellants with the members of the selection committee, gave undue favour to them and the same was not denied. The revisional authority was of the opinion that in the facts and circumstances of the case, not joining the appellants did not prejudice them. Further, the violation of principle of bias attracts in this case which vitiates the selection. However, in absence of any prejudice, decision of the Collector is not required to be altered with. 7. Aggrieved by the order of revisional authority, appellants filed a writ petition under Article 226 of the Constitution of India before the High Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. Court.

Learned Single Judge with intent to afford an opportunity allowed the appellants herein to inspect the records of selection through their counsel, as spelt out in paragraph 13 of the order of Single Judge which is reproduced as under: - "13. During the course of hearing of this petition, as ordered earlier the Chief Executive Officer of the Janpad Panchayat was present with the original records of selection. Shri M. L. Choubey, learned counsel for the petitioners, was granted permission to inspect the records he inspected the records on 29. 07. 2008. The records have been perused by this Court and is returned back to Shri Shailesh Mishra after perusal.

" Later, learned Single Judge formulated following three questions: - (i) "The first question would be as to whether the appeal was maintainable before the Collector under Rule 3; (ii) The second question is as to what is the effect of cancellation of the appointment of the petitioners, ordered without hearing them and without impleading them as parties; and, (iii) The third and final question would be as to whether the Collector and Commissioner were right in interfering with the selection of the petitioners for the reasons indicated by them in the impugned order i. e... the presence of the relatives as members of the selection committee in which petitioners had participated" 8. Question No. (i) relating to maintainability of appeal was answered against the appellants. The said question is not of much relevance at this stage, thus, in my view it is not required to be dealt with in detail. Further, the Learned Single Judge dealt questions no.

(ii) and (iii) in detail as they relate to non-joinder of the appellants and affording them an opportunity of hearing and presence of relatives of appellants in the selection committee. The said question had been answered in paragraphs 20, 21, 22 and 23 of the order. In my view para 20 of the order of learned Single Judge is the foundational discussion on the issues therefore it is relevant and reproduced as under: - 162 "20. Item No.

3 of Rule 2 deals with Shiksha Karmi - Grade III, the educational qualification is Higher Secondary Certificate Examination passed, and the Selection Committee is to consist of: (i) Chairperson, Standing Committee of Education of Janpad Panchayat; (ii) Chief Executive Officer, Janpad Panchayat; (iii) Block Education Officer (Member Secretary); (iv) Two specialists in the subject to be nominated by the Standing Committee for Education of whom one shall be woman; and, (v) All members of the Standing Committee of Education of whom at least one belongs to the Scheduled Castes, Scheduled Tribes or OBC. In the present case, there is no dispute that the Selection Committee was constituted as per the aforesaid provision, but presence of two members in the Selection Committee is to be taken note of. The President of the selection Committee is one Smt. Pushpa Dwivedi. She is Chairman of the Education Committee and she has participated in the process of selection of various candidates.

Another member of the Selection Committee was one Shri Swami Singh, who is a Member of the Janpad Panchayat and has participated in the process of selection as a Member of the Education Committee. It is found by the Collector and the finding of the Collector is affirmed by the Commissioner to the extent that petitioner No. 1 Smt. Shyama Dwivedi is the sister- in-law of the President of the Selection Committee Smt. Pushpa Dwivedi. According to the finding recorded Smt. Pushpa Dwivedi's sister-in-law (Nanand) Smt. Shyama Dwivedi; her Devrani Smt. Vibha Dwivedi; two sisters Rashmi Dwivedi and Rita Dwivedi have been appointed. Apart from these persons, her nephew Devendra Awasthi and her two nieces Ku. Rekha Awasthi and Ku. Prabhesh Kumari have been appointed. That apart, it is found that Smt. Gita Rawat, petitioner No. 8, is also sister of Smt. Pushpa Dwivedi. From the aforesaid facts, it is clear that eight members of the family belonging to the President Smt.

Pushpa Dwivedi have been selected for appointment on the post in question. Apart from the aforesaid eight persons petitioner Smt. Ramrani Singh is found to be Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. daughter-in-law of Shri Swami Singh, who was Member of the Committee; Shri Sumer Singh, petitioner No. 6, is found to be son of Shri Swami Singh and one of his nephew Shri Rajesh Singh has also been found to be appointed. Finding in this regard is recorded by the Collector and the Commissioner on the basis of the statement made by the Chief Executive Officer. The order-sheets dated 4. 6. 2002 and 24. 6. 2002 indicates that petitioners were directed to file affidavits to show as to whether this is a correct fact or not. The order-sheet dated 24. 6. 2002 indicates that time was sought by learned counsel for the petitioners to file specific affidavit of the petitioners denying their relationship with Members of the Selection Committee or office bearers of the Janpad Panchayat.

Even though in pursuance to the aforesaid order, affidavits have been filed, but in these affidavits the facts are not denied and during the course of hearing Shri M. L. Choubey fairly admitted that petitioners are related to Smt. Pushpa Dwivedi and Shri Swami Singh, as recorded by the Collector and the Commissioner and he accepts the same, that being so, the finding recorded by the Collector and the Commissioner to the effect that all the petitioners are very closely related either to the President of the Committee, or its Member is a correct finding. According to the Collector and the Commissioner, the Panchayat Raj Adhiniyam prohibits grant of any undue benefit by Members and office bearers of the Panchayat to any of its relatives or family members. Finding recorded is that in this case some benefit has been granted. " (emphasis supplied) 9. Paragraphs 21, 22 and 23 have already been reproduced by esteemed brother in para 27 in his judgment.

Discernibly, in para 21 thereto the arguments regarding presence of the members of the selection committee do not materially affect the selection process was raised by the appellants, which is answered in paragraphs 22 and 23. As reflected from paragraph 22, it drew the inference that one of the appellants had obtained less marks in higher secondary examination but she was accorded higher marks in oral interview 164 and experience category, and included in her merit. While dealing with the case of other candidates observed they secured less marks in higher secondary in comparison to wait listed candidates and granted more marks in oral interview due to which, they found place in the selection list.

In scrutiny of facts and the record learned Single Judge was of the opinion that the appellants herein received less marks in higher secondary whereas many persons whose names appearing in wait list received 78% to 79% marks and they were given less than three marks in oral interview, therefore, they have not been given place in selection list. In paragraph 23 of the order, the Learned Single Judge further dealt with the individual cases of the appellants and concluded that the appellants whose relatives were the members of the selection committee found favour in their appointment, therefore, due to bias such appointments stood vitiated. Applying the said analogy, the arguments of appellant(s) were not found convincing enough to interfere with the orders of the Collector and Commissioner in exercise of scope of Article 226 to warrant interference by the High Court. 10.

On analysing the order of the learned Single Judge in detail it is quite vivid that despite affording due opportunity to controvert the factum of relationship with the members of the selection committee and other fact findings, they have not refuted those allegations disputing their relationship. The record of the selection was produced before the Learned Single Judge bench and it was inspected by the advocate of the appellant(s) but they were not in a position to deny such facts and allegations. Accordingly, it was observed that the selection of the appellants who were relatives of the members of the selection committee, is not as per the spirit of Section 40 and 100 of the Adhiniyam which prohibits the office bearers to use any undue benefit to any of its relative and family members. Learned Single Judge applying the principles enunciated in the judgment of the A. K. Kraipak and others Vs.

Union of India and others; (1969) 2 SCC 262 and evaluating the facts refused to exercise the jurisdiction under Article 226 of the Constitution of India. In the light of the judgment of the State Bank of Patiala and others Vs. S. K. Sharma 1996 (3) SCC 364 learned Single Judge observed that appellants have afforded ample opportunity of hearing therefore not joining them party at the first instance before the Collector, should not prejudice them and the plea of violation of principle of natural justice is not justified. Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. 11. The appellants challenged the order of the learned Single Judge in Writ Appeal before the Division Bench which was dismissed by the impugned judgement and the same is under challenge before us. In the impugned judgement, it is said that relationship of appellants with the members of selection committee has not been denied.

Analysing the findings of paras 21 to 23 of learned Single Judge, it is seen how the relatives of the members of the selection committee were given higher marks in interview though they were having less marks in higher secondary and in the category of experience with the other wait-listed candidates who were given less marks in interview with an intent to push down the meritorious candidates in the merit list The Division Bench referring the judgments of A. K. Karipak (supra), J. Mohapatra & Co. & Anr. Vs. State of Orissa & Anr. ; (1984) 4 SCC 103, Ashok Kumar Yadav & Ors. Vs. State of Haryana & Ors. ; (1985) 4 SCC 417, Kirti Deshmankar Vs. Union of India & Ors. ; (1991) 1 SCC 104, Gurdip Singh Vs. State of Punjab & Ors. ; (1997) 10 SCC 641, Utkal University Vs. Nrusingha Charan Sarangi; (1999) 2 SCC 193, G. N. Nayak Vs. Goa University; (2002) 2 SCC 712, Govt. of T. N. Vs. Munuswamy Mudaliar and Anr. ; 1988 Supp SCC 651: AIR 1988 SC 2232, Bihar State Mineral Development Corporation Vs.

Encon Builders (I) (P) Ltd. ; (2003) 7 SCC 418 and in paragraph 23 observed as under: - "The present factual matrix is to be tested on the aforesaid enunciation of law. We have reproduced the analysis made by the learned Single Judge. He has categorically recorded that the relatives of the members of the selection committee have been selected. The submission of the learned counsel for the appellants is that if the marks awarded by the interested persons are excluded then also they would be selected. The said submission, if we are permitted to say so, is a justification from hind sight. The result manifests itself. In the case at hand, it does not require Solomon's wisdom that bias is in stricto sensu as from a reasonable mind could be thought. As we have referred to the authorities above, bias is a state of mind at work.

Quite apart from above, when the degree of relationship is in quite proximity, bias is to be inferred and the authorities below have inferred the same and after 166 detailed discussion, the learned Single Judge has given the stamp of approval to the same. " (emphasis supplied) 12. In the backdrop of the above factual matrix, as analysed and recorded, the Division Bench did not find any fault in the findings of two quasi-judicial authorities and learned Single Judge. While dismissing the appeal and refusing to entertain the plea of violation of principle of natural justice, it was observed that since the selected candidates were relatives of the office bearers of the committee, the possibility of reasonable likelihood of bias cannot be obliterated. Once the possibility of likelihood of bias kicks in, the selection process stands vitiated. It is said that in absence of any demonstrable prejudice to the appellants, their appointment cannot be approved.

On the plea of not joining them as party before the Collector, the Division Bench observed in paragraph 11 as thus: "11. The second aspect is whether the orders passed by the Collector and the Commissioner should have been quashed by the learned Single Judge as the appellants who had been visited with adverse civil consequence were not arrayed as parties before the Collector. It is urged by the learned counsel for the appellants that in view of the law laid down in Inderpreet Singh Kahlon (supra) and M/s Laksmi Precision Screws Limited (supa), no person should be visited with an adverse civil consequence without affording him a reasonable opportunity of hearing. There cannot be any cavil on the aforesaid proposition. The learned Single Judge has placed reliance on the decision rendered in State Bank of Patiala and Others v. V. K.

Sharma, (1996) 3 SCC 364 to come to hold that unless prejudice is caused due to non-granting of hearing, the orders should not be mechanically interfered with. It is worth noting that the appellants had preferred the revision. They participated in the hearing before the revisional authority in all aspects. The Commissioner had called for the entire selection proceeding and other documents on record were available to the petitioners therein. There was due deliberation in respect of the defence put forth by the Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. revisionists. That apart, the learned Single Judge had called for the parties.

In view of the aforesaid, we are of the considered opinion that though it was imperative on the part of appellants to implead the affected parties, yet as the affected parties had been given full opportunity from all aspects by the revisional forum as well as by the learned Single Judge, we do not think it apt and apposite to quash the order and remand the matter to the Collector to re-adjudicate singularly on the ground that the appellants herein should have been impleaded as a parties and that the matter should be reheard. The said exercise in the peculiar facts and circumstance so the case is unwarranted. " (emphasis supplied) 13. In view of the foregoing, it is clear that while challenging the selection and appointment of the appellant before the Collector, they were not the party. However, in revision they challenged the said and afforded the opportunity but their contentions did not find favour with revisional authority.

As per the findings recorded and also by Learned Single Judge, it is clear that the appellants were relatives of the members of the selection committee which is not permissible as per the spirit of Sections 40 and 100 of the Adhiniyam. The Division Bench confirmed those findings holding that in the facts of the case, reasonable likelihood of bias cannot be ruled out. It was also held that at initial stage the appellants were required to be joined as parties before the Collector but because they have been given due opportunity by the revisional authority, before learned Single Judge, it has not caused any prejudice. Looking to the uncontroverted facts only their non-joinder before the Collector would not vitiate the order impugned. 14. In the above factual background, it is required to be appreciated that whether due to non-joining the appellants before the Collector violates the principle of natural justice ?

Consequently, whether the findings recorded against the appellants by two quasi-judicial authorities, writ court and the writ appellate court is liable to be interfered with in this appeal? 15. For appreciating the said issue, it is necessary to refer Sections 40 and 100 of the Adhiniyam, which are reproduced as thus: - 168 "40. Removal of office-bearers of Panchayat- (1) The State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time, remove an office-bearer- (a) if he has been guilty of misconduct in the discharge of his duties; or (b) if his continuance in office is undesirable in the interest of the public: Provided that no person shall be removed unless he has been given an opportunity to show cause why he should not be removed from his office.

Explanation- For the purpose of this sub-section "Misconduct" shall include- (a) any action adversely affecting,- (i) the sovereignty, unity and integrity of India; or (ii) the harmony and the spirit of common brotherhood amongst all the people of State transcending religious, linguistic, regional, caste or sectional diversities; or (iii) the dignity of women; or (b) gross negligence in the discharge of the duties under this Act; [(c) the use of position or influence directly or indirectly to secure employment for any relative in the Panchayat or any action for extending any pecuniary benefits to any relative, such as giving out any type of lease, getting any work done through them in the Panchayat by an office-bearer of Panchayat. Explanation. - For the purpose of this clause, the expression "relative" shall mean father, mother, brother, sister, husband, wife, son, daughter, mother-in-law, father-in-law, brother-in- law, sister-in-law, son-in-law or daughter-in-law:]" "100.

Penalty for acquisition by a member, office bearer or servant of interest in contract. - If a member or office Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. bearer or servant of Panchayat knowingly acquires, directly or indirectly any personal share or interest in any contract or employment, with, by or on behalf of a Panchayat without the sanction of or permission of the prescribed authority he shall be deemed lo have committed an offense under Section 168 of the Indian Penal Code, 1860 (XLV of 1860). " 16. On perusal of the said provision, the intention of the legislators is lucid that a person can be removed from the office mainly on two instances, firstly, if they are guilty of misconduct and secondly, their continuation in office is undesirable in public interest. The provision further attempts to enlist the events which typically fall within the definition of misconduct.

Clause (c) of the first explanation to Section 40 encompasses use of position by direct or indirect influence to secure employment for the relatives and extending any pecuniary benefits to them as misconduct. Upon perusal, it is irrefutably inferred that functioning of the Panchayat must be free from influence in selection and appointment and no undue benefit should be given to relatives in employment or any other pecuniary benefit. Otherwise contravention of this provision attracts removal of the office bearers. Further, it is apparent from the Explanation to clause (c), that the term 'relative' encompasses father, mother, brother, sister, husband, wife, son, daughter, mother-in-law father- in-law brother-in-law of the office bearer and such relationships are implied to be falling within the category of 'prohibited degree of relationship' in the matter of employment or to grant pecuniary benefit.

Thus, it is explicit that relatives of elected office bearers, if secures an employment by the process where the office bearers were actively participating and controlling the process, it gives cause for removal of such office bearers. 17. As per factual matrix of the instant case, out of 14 candidates whose selection was set aside, 7 fall within the prohibited degree of relationships and others can be said to be in near relation. Though in the present case we are not concerned with the removal of office bearers, nonetheless, we should not lose track of the fact that the conduct of the office bearers in giving undue benefits to their near relatives in an orchestrated manner to deprive other candidates of the opportunities despite them securing more marks in qualifying higher secondary examination, by and large amounts 170 to 'misconduct' under the law.

Upon challenge, the selection and appointment of successful candidates who were alleged to be in relationships with the office bearers has been set aside by the orders of the authorities and the High Court on the ground that the presence of reasonable likelihood of bias vitiates the selection process and consequently the appointment. Further, the plea of their non-joinder at initial stage was not found favour by both, the authorities and the High Court, by stating that since the candidates have been afforded sufficient opportunity however, their non-joinder before Collector would not be detrimental to the principle of natural justice. At this juncture it is imperative to address the question that when the selection and appointment is made in blatant violation of the principle(s) of natural justice what effect would it have on the selection of such candidates? 18.

In the case at hand, the appellants countered the findings of Collector, Commissioner, learned Single Judge and the Division Bench on the ground of violation of audi alteram partem. It was contended that their appointment was cancelled without joining them at in initial proceedings before the Collector. The principle of natural justice does not solely depend on audi alteram partem. It needs to be prefaced by an action of the administrative or quasi- judicial authorities and the courts of common law jurisdiction in India to invalidate the orders based on rule of principle doctrine. The principle of natural justice emphasises the basic values which a common man cherishes throughout. The said principle is based on rules relating to fairness, reasonableness, equity and justice, good faith, and good conscience. It gives assurance of justice with the intent to develop confidence in the justice delivery process.

The English law recognized two facets of natural justice "nemo debet esse judex in propia causa" which means no one can be a judge in his own cause and "audi alteram partem" means no one should be condemned unheard. The preceding principle emphasises about the decision-making authority and the latter emphasises a procedure to be adopted in decision making, however, the deciding authority must be impartial and without bias, therefore, the element of the bias in the mind of the authority is an essential facet and the initial step to observethe principle of natural justice. The preceding principle emphasises that a man should not be a judge in his own cause. Thus as per the first requirement, the person who is involved in Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. the process including a judge should be impartial and neutral and must be free from bias. 19. In the English judgement of R Vs. Rand, (1866) LR 1 QB 230, Blackburn, J observed thus "...

Wherever there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be very wrong in him to act; and we are not to be understood to say, that where there is a real bias of this sort this Court would not interfere;.. " 20. In another English judgment R Vs. Sussex JJ, ex parte McCarthy (1924) 1 KB 256, the King's Bench quashed the conviction on the ground of bias. Lord Hewart, CJ posed the question as thus: - "... The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. " and answered as under: - "... The answer to that question depends not upon what actually was done but upon what might appear to be done.

Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the Justices' affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired with the Justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction. In those circumstances I am satisfied that this conviction must be quashed, unless it can be shown that the applicant or his solicitor was aware of the point that might be taken, refrained from taking it, and took his chance of an acquittal on the facts, and then, on a conviction being recorded, decided to take the point. 21. In the case of R Vs.

Camborne JJ, ex parte Pearce, (1955) 1 QB 41 the QB observed that 'real likelihood was the proper test and that a real likelihood of bias had to be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries' The question arose before the QB was "... 'What interest in a judicial or quasi-judicial proceeding does the law regard as sufficient to incapacitate a person from adjudicating or assisting in adjudicating on it upon the ground of bias or appearance of bias? " After discussing various judgements, it was held that - "In the judgment of this Court the right test is that prescribed by Blackburn, J. , namely, that to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding, a real likelihood of bias must be shown.

This Court is further of opinion that a real likelihood of bias must be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries. " In the present case, for example, the facts relied on in the applicant's statement under RSC Order 59 Rule 3(2), might create a more sinister impression than the full facts as found by this Court, all or most of which would have been available to the applicant had he pursued his inquiries upon learning that Mr Thomas was a member of the Cornwall County Council, and none of these further facts was disputed at the hearing of this motion.

The frequency with which allegations of bias have come before the courts in recent times seems to indicate that Lord Hewart's reminder in Sussex JJ case [(1924) 1 KB 256: 1923 All ER Rep 233] that it is of fundamental importance that justice should not only be done, but Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. should manifestly and undoubtedly be seen to be done' is being urged as a warrant for quashing convictions or invalidating orders upon quite unsubstantial grounds and, indeed, in some cases upon the flimsiest pretexts of bias. Whilst endorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, this Court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done. " 22. In the case of Metropolitan Properties Co. (FGC) Ltd. Vs.

Lannon, (1969) 1 QB 577, Lord Denning observed and held as thus: - "the principle evolved by Lord Hewart, CJ that 'justice should not only be done, but manifestly and undoubtedly be seen to be done'. In considering whether there was 'real likelihood' of bias, Court does not look at the mind of the decision-maker himself. "The Court looks at the impression which would be given to other people. Even if, he was as impartial as could be, nevertheless, if rightminded persons would think that, in the circumstances, there was a 'real likelihood' of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. " "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 at the expense of the other. The Court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think that he did.

" The said test was explained in the case of Hannam Vs. Bradford Corporation, (1970) 2 All ER 690 as thus: - "If a reasonable person who has no knowledge of the matter beyond knowledge of the relationship which subsists between some members of the tribunal and one of the parties would think that there might well be bias and there is in his opinion a real likelihood of bias. Of course, someone else with inside knowledge of the characters of the members in question might say "Although things don't look very well, in fact there is no real likelihood of bias. " 174 That, however, would be beside the point, because the question is not whether the tribunal will in fact be biased, but whether a reasonable man with no inside knowledge might well think that it might be biased. " 23. In another English judgment R Vs. Gough, 1993 AC 646, the question came before the House of Lords which used the expression 'real danger' of bias while applying the test of reasonable likelihood of bias.

The Court emphasised the term "possibility of bias" rather than "probability of bias" and held as under: - "... In my opinion, if, in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. I am by no means persuaded that, in its original form, the real likelihood test required that any more rigorous criterion should be applied. Furthermore, 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. " "In conclusion, I wish to express my understanding of the law as follows.

I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with Justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise, I consider that, in cases concerned with jurors, the same test should be applied by a Judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the court of appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. knowledge of which would not necessarily be available to an observer in court at the relevant time.

Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.... " 24. The above said English principles having been adopted by the Indian Courts, the Constitutional Bench in the celebrated judgment of A. K. Kraipak and others (supra) held as thus: "..... The real question is not whether he was biased. It is difficult to prove the state of mind of a person.

Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. " (emphasis supplied) 25. Further, in the case of S. Parthasarathi Vs. State of Andhra Pradesh; (1974) 3 SCC 459 whiledrawing distinction of bias, "real likelihood" and "reasonable suspicion", the Court expanded the scope of bias. The relevant paragraphs of the said judgment are reproduced as under: - "13. ...... We are of the opinion that the cumulative effect of the circumstances stated above was sufficient to create in the mind of a reasonable man the impression that there was a real likelihood of bias in the inquiring officer.

There must be a "real likelihood" of bias and that means there must be a substantial possibility of bias. The Court will 176 have to judge of the matter as a reasonable man would judge of any matter in the conduct of his own business (see R. v. Sunderland, JJ. ) [(1901) 2 KB 357 at 373] 14. The test of likelihood of bias which has been applied in a number of cases is based on the "reasonable apprehension" of a reasonable man fully cognizant of the facts. The courts have quashed decisions on the strength of the reasonable suspicion of the party aggrieved without having made any finding that a real likelihood of bias in fact existed (see R. v. Huggins [(1895) 1 QB 563] ; R. v. Sussex, JJ. , ex. p. McCarthy [(1924) 1 KB 256] ; Cottle v. Cottle [(1939) 2 All ER 535] ; R. v. Abingdon, JJ. ex. p. Cousins [(1964) 108 SJ 840] . ) But in R. v. Camborne, JJ. ex.

p Pearce [(1955) 1 QB 41 at 51] the Court, after a review of the relevant cases held that real likelihood of bias was the proper test and that a real likelihood of bias had to be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries. XXX XXX XXX 16. The tests of "real likelihood" and "reasonable suspicion" are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done.

If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision... " 26. This Court while emphasising upon bias in the case of Dr. G. Sarana Vs. University of Lucknow and others; (1976) 3 SCC 585 held that what has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased.

In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration. In case, the member of the group or board may be in a position to influence the other, then his bias is likely to operate in a subtle manner. 27. In the case of J. Mohapatra & Co. & Anr. (supra), this Court emphasised that the doctrine of necessity applies not only to judicial matters but also to quasi-judicial and administrative matters. While reiterating the principle of bias, it has been held that doctrine of necessity cannot be invoked because the members of the committee were appointed by a Government Resolution and some of them were appointed because they were holding official position. Such members, by virtue of the orders or statutes were made a part of the selection committee, are required to inform their position to the Government, however, without taking such recourse they cannot take a plea to apply the doctrine of bias. 28.

This Court in another Constitution Bench case of Ashok Kumar Yadav & Ors. (supra) has reaffirmed the principle of bias holding that if a selection committee is constituted for the purpose of selecting candidates on merits and one of the members of the selection committee is closely related to a candidate appearing for the selection, it would not be enough for such member merely to withdraw from participation in the interview of the candidate and ask the authorities to nominate another person in his place on the selection committee, because otherwise all the selections made would be vitiated on account of reasonable likelihood of bias affecting the process of selection. 29. In the case of Sk. Golap and others Vs. Bhuban Chandra Panda and others; 1990 SCC Online Cal 264, while dealing with the issue of likelihood of bias, applying the principle "justice should not only be done but it should be seen to have been done" the Court held as under: - 178 "7. ......

We have no hesitation in believing also that he had no personal contact with the writ petitioners who were his erst-while clients since the previous writ petition was not decided in the recent past. These considerations do not, however, detract from the validity of the legal objection raised on behalf of the appellants. It is not necessary for the appellants to establish that the learned single Judge actually had a bias and that the said bias was the cause of the adverse verdict. The test to be applied in such cases is not whether in fact a bias has affected the judgment but whether there was a real likelihood of bias. The answer depends not upon what actually was done but upon what might appear to be done. Justice must be rooted in confidence; and confidence is destroyed when right minded people may have reason to go away thinking: "the Judge might have been biased. " 30.

Similarly, in the case of Kirti Deshmankar (supra) this Court re- emphasised that if the mother-in-law of the selected candidate was interested in the admission of her daughter-in-law, her presence in the meeting of the council vitiates the selection and it was not necessary to categorically establish the bias. The Court observed that if in the selection process it is shown that there was a reasonable likelihood of bias, it is sufficient to set aside the such selection. 31. This Court in the case of G. N. Nayak (supra) again emphasising the element of impartiality in the mind of judicial, quasi-judicial or administrative body held as thus: - "33. Bias may be generally defined as partiality or preference. It is true that any person or authority required to act in a judicial or quasi-judicial matter must act impartially.

"If however, 'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions and the processes of education, formal and informal, create attitudes which precede reasoning in particular instances and which, therefore, by definition, are prejudices. " [ Per Frank, J. in Linahan, Re, (1943) 138 F 2d 650, 652] Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. 34. It is not every kind of bias which in law is taken to vitiate an act. It must be a prejudice which is not founded on reason, and actuated by self-interest -- whether pecuniary or personal. Because of this element of personal interest, bias is also seen as an extension of the principles of natural justice that no man should be a judge in his own cause. Being a state of mind, a bias is sometimes impossible to determine.

Therefore, the courts have evolved the principle that it is sufficient for a litigant to successfully impugn an action by establishing a reasonable possibility of bias or proving circumstances from which the operation of influences affecting a fair assessment of the merits of the case can be inferred". 32. The case of Gurdip Singh (supra) is a case of similar nature as on hand, in paragraph 3 of the said case, this Court has observed as thus: "3. ..... It has been established beyond doubt that the father of Respondent 3 being the Secretary of the Managing Committee of the school participated in the selection of his daughter, Respondent 3 and later on confirmation was given about such selection in favour of Respondent 3 where Respondent 3 by virtue of improper selection also constituted as one of the members of the Managing Committee giving confirmation. In the aforesaid circumstances, we set aside the selection of Respondent 3 as the Headmistress of the said school. " 33.

On the other side, learned counsel for the appellants has heavily placed reliance on the judgment of Javid Rasool Bhat & Ors. Vs. State of Jammu and Kashmir & Ors. ; (1984) 2 SCC 631 to contend that in absence of any allegation of mala fide, it would not be right to set aside the selection merely because one of the candidates happened to be related to a member of the selection committee who abstained from participating in the interview of that candidate. The case of Javid Rasool Bhat (supra) is based on a written and oral test wherein the member of the selection committee for oral test was unaware of the marks obtained by the candidate in the written examination. The father of the candidate who was on the interview panel had left the premise at the time of 180 interview. Thus, the Court found that there was no bias.

While in the present case, as per the procedure prescribed and discussed, the members of selection committee were aware, how many marks have been obtained by individual candidates in qualifying exam and also in experience category and by shortage of how many marks they may be out from the merit list of selection. The members were aware that their relatives would appear for interview, therefore, they themselves passed a resolution on 01. 08. 2003 prior to starting the process of selection and decided to abstain from the interview of those particular candidates. Having knowledge of the fact that their relatives are appearing and even without intimating the same to the higher authorities for change of selection committee, they had participated in the process of selection and about 5% relatives got selected and appointed by such an act. Therefore, in my opinion the judgment of Javid Rasool Bhat (supra) is disqualifiable on facts and is of no help to the appellants. 34.

As ascertained from the discussion above, whether in a particular case, principles of natural justice have been contravened or not is a matter for the courts to decide from case to case. However, even with all its vagueness and flexibility, its two elements have generally been accepted, viz, (i) that the body in question should be free from bias, and (ii) that it should hear the person affected before it decides the matter. The first principle denotes that the adjudicator should be disinterested and unbiased; the prosecutor himself should not be a judge; the judge should be a neutral and disinterested person; a person should not be a judge in his own cause; a person interested in one of the parties to the dispute should not, even formally, take part in the adjudicatory proceedings. The basis of this principle is that justice should not only be done, but should manifestly and undoubtedly be seen to be done. According to Lannon (Supra), the actual existence of bias is not necessary.

The test is "reasonable likelihood of bias", if a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision. Mere apprehension of bias is not enough and there must be cogent evidence available on record to come to the conclusion. In my view the said Doctrine has been adopted in pith and substance by Indian Courts. 35. As per the judgment of Ridge Vs. Baldwin; 1964 AC 40, it is said that the doctrine of natural justice is not only to secure justice but Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. to prevent the miscarriage of justice. Such doctrine was held to be incapable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances would amount to prevent the miscarriage of justice. In the case of Russell Vs. Duke of Norfolk; (1949) 1 AII ER 109 (CA), As Tucker, L. J.

has expounded when the principles of natural justice are required to be seen, everything will depend on the actual facts of the case. He observed as thus: - "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. " 36. On reverting to the facts of the present case and as observed in the table in Para 2 of this judgement, five of the present appellants fall within the prohibited degree of relatives as prescribed in the explanation of Section 40 of the Adhiniyam, while the remaining five have near relationships with the Committee members. It is also to observe that their relationships have not been denied by the present appellants at any juncture of this litigation. The process of selection is the same in which some of the appellants having prohibited degree of relationship and near relationship.

To apply the test of reasonable likelihood of bias, the relationship of candidates with the office bearers is material which may have relevancewhen an action for removal of the office bearer is required. But by such an act substantial likelihood of bias in selection of relatives by the members of the Committee cannot be ruled out from the mind of a reasonable man as expressed by Lord Denning in the case of Metropolitan Properties Co. (FGC) Ltd. (supra). Additionally, the observation of the learned Single Judge in paragraphs 17, 21, 22 and 23 of his judgement demonstrate the orchestrated manner in which bias has vitiated the selection process. In my view, it is sufficient to plant the seed of likelihood of bias in the mind of a reasonable man, thus, the test of reasonable likelihood of bias as propounded in the abovementioned judgements is satisfied if tested on the anvil of the facts of the present case. 37.

In the present case, in my considered opinion, the findings recorded by the two quasi-judicial authorities, writ court and writ appellate court are based on the analysis of reasonable likelihood of bias 182 which rightly stirs bias in the mind of a common man who could not get selected because the appellants have relations with the members of the selection committee. The detailed analysis of irregularities has been explained by the learned Single Judge and has been re-affirmed by the Division Bench. In my view the said stamp of approval should not be disturbed by this Court in exercise of jurisdiction under Article 136 of the Constitution of India. 38. Appellants have also vehemently contended that they have not been afforded an opportunity to be heard at the first stage before the collector, thus, non-adhesion to the principle of natural justice vitiates the process.

At this stage, it is also crucial to mention that Indian Courts time and again have reiterated that principles of natural justice are neither treated with absolute rigidity nor as imprisoned in a straitjacket. It has many facets. Sometimes, this doctrine is applied in a broad way, sometimes in a limited or narrow. Applicability and requirements of natural justice depend upon the facts and circumstances of the case and it is not possible to lay down rigid rules as to when the principles of natural justice are to apply; nor as to their scope and extent. Everything depends on the facts and circumstances. 39. In the case of Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant and others; (2001) 1 SCC 182, this Court on refinement of principles of natural justice observed in paragraph 2 as thus: - "2.

While it is true that over the years there has been a steady refinement as regards this particular doctrine, but no attempt has been made and if we may say so, cannot be made to define the doctrine in a specific manner or method. Strait-jacket formula cannot be made applicable but compliance with the doctrine is solely dependent upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of non-compliance with the doctrine, the law courts in that event ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most-accepted methodology of a governmental action. " Krishnadatt Awasthy v. State of Madhya Pradesh & Ors.

In view of the above, due to steady refinement as regards to the doctrine of natural justice, there cannot be any straitjacket formula to apply. The doctrine will now be termed as a synonym of fairness in the concept of justice and stand as the most-accepted methodology for a governmental action. 40. This Court in the case of Ashok Kumar Sonkar Vs. Union of India & Ors. ; (2007) 4 SCC 54 while dealing with the principle of natural justice doctrine observed that it is well settled that the said doctrine cannot be put in any straitjacket formula. It may not be applied in each case unless prejudice is shown. It is not necessary where it would be a futile exercise. The similar observations have been made by this Court in the case of H. P. Transport Corpn. v. K. C. Rahi, (2008) 11 SCC 502. In the said case, this Court in paragraphs 7 and 8 has observed as thus: - "7. The principle of natural justice cannot be put in a straitjacket formula.

Its application depends upon the facts and circumstances of each case. To sustain a complaint of non-compliance with the principle of natural justice, one must establish that he has been prejudiced thereby for non-compliance with principle of natural justice. 8. In the instant case we have been taken through various documents and also from the representation dated 19- 10-1993 filed by the respondent himself it would clearly show that he knew that a departmental enquiry was initiated against him yet he chose not to participate in the enquiry proceedings at his own risk. In such event plea of principle of natural justice is deemed to have been waived and he is estopped from raising the question of non-compliance with principles of natural justice. In the representation submitted by him on 19-10-1993 the subject itself reads "Departmental Enquiries". It is stated at the Bar that the respondent is a law graduate, therefore, he cannot take a plea of ignorance of law.

Ignorance of law is no excuse much less by a person who is a law graduate himself. " 41. The theory of prejudice had further been considered by this Court in the case of Jankinath Sarangi Vs. State of Orissa; (1969) 3 SCC 184 392, this Court while dealing with the facts of the case observed as thus: - "5. ..... If anything had happened the earth would have swollen rather than contracted by reason of rain and the pits would have become bigger and not smaller. Anyway the questions which were put to the witnesses were recorded and sent to the Chief Engineer and his replies were received. No doubt the replies were not put in the hands of the appellant but he saw them at the time when he was making the representations and curiously enough he used those replies in his defence. In other words, they were not collected behind his back and could be used to his advantage and he had an opportunity of so using them in his defence.

We do not think that any prejudice was caused to the appellant in this case by not examining the two retired Superintending Engineers whom he had cited or any one of them. The case was a simple one whether the measurement book had been properly checked. The pleas about rain and floods were utterly useless and the Chief Engineer's elucidated replies were not against the appellant. In these circumstances a fetish of the principles of natural justice is not necessary to be made. We do not think that a case is made out that the principles of natural justice are violated. " 42. In my considered opinion, the principle of law laid down on prejudice in the case of S. K. Sharma (supra) duly applies in the facts of this case in such a scenario. In the said case in paragraph 33, the Court summarises the principle emerging on discussion of the issue of violation of the doctrine of natural justice. The relevant paragraph of the seven principles are reproduced as thus: - "33.

We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee): (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory Krishnadatt Awasthy v. State of Madhya Pradesh & Ors. provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under -- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz. , whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for.

In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the 186 enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i. e. , whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined.

The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation.

If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] . The ultimate test is always the same, viz. , test of prejudice or the test of fair hearing, as it may be called. Krishnadatt Awasthy v. State of Madhya Pradesh & Ors.

(5) Where the enquiry is not governed by any rules/ regulations/statutory provisions and the only obligation is to observe the principles of natural justice -- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action -- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i. e. , between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i. e. , in accordance with the said rule (audi alteram partem).

(b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to