CIVIL APPELLATE JURISDICTION: Civil Appeal No. 861
of 1975.
(Appeal by Special Leave from the Judgment and
Order dated
1-3-1975 of the Allahabad High Court (Lucknow
Bench) in writ
petition No. 405 of 1974.)
A.K. Sen and S.K. Bisaria, for the appellant.
C.P. Lal for respondents 1-3.
Yogeshwar Prasad and R.N. Trivedi, for respondents.
No. 8.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave is directed against the judgment and order dated March 31, 1975, of Lucknow Bench of the Allahabad High Court dismissing the writ petition No. 405 of 1974 filed by the appellant challenging the recommendation made by a Selection Committee of the Lucknow University (hereinafter referred to as ’the University’) for appointment of respondent No. 8 as Professor of Anthropology in the Faculty of Arts of the University.
The facts giving rise to this appeal are: towards the end of the year 1973, the University put up an advertisement inviting applications from candidates possessing the following qualifications to fill up a vacant post of Professor of Anthropology :---
"Essential: First or high second class
Master’s degree and Doctorate in the subject con-
cerned with a good academic record, experience of
teaching post-graduate classes not less than 7
years and/or having conducted and successfully
guided research work for 7 year’s in recognised
institution and having published work of high
standard in the subject concerned."
Preferential: High academic distinctions."
The appellant and( respondent No. 8 were the
only two candidates who applied for the post in
response to the advertisement. Their respective
qualifications are as set out hereunder :-S.No. Name Age Qualifications & Experience 1. Dr. G. Sarana, 38 years H.S. (U. P. Bd) 1949-1 Div. Head of Deptt. Inter (B.H.U.) 1951-1 Div. of Anthropology, B.A. (L.U.) 1953-I Div. Karnatak University, M.A. (L. U.) 1965-I Div. Dharwar. Ph. D. (Harvard (U) 1966.
Published 28 research papers
and 3 books.
Worked as :-
(1) Temp. Lecturer in Anthro-
pology L.U. July, 1955-
April, 1962.
(2) Lecturer in Anthropol
ogy Punjab U-April-August,
1962.
(3) Visiting Lecturer-Univ.
of California at Santa
Barbara-July 1965-June
1966.
(4) Karnatak Univer
sity (September 1966 upto
date as Reader and since
27 June 1970) as Profes
sor. S.No. Name Age Qualifications & Experience 2.Dr.K.S. Mathur, 44 years H.S. (U. P. Bd) 1944-1 Divn. Reader and Head of the Inter (U. P. Bd) 1946- I Divn. Deptt. of Anthropology, B. Com (L. U.) 1950- I Divn. Lucknow University. Ph.D. (Australian National U)
1960.
Published several research
papers,
Worked as:-
(1) Lecturer in Anthropology
L.U.-1951-64.
(2)Reader in Anthropology
L.U. - 1964-continuing
(3) Sociologist- National
Council of Appl. Economic
Research, New Delhi March’
September-1960.
On February 27, 1974,, a Selection Committee consisting of Shri A.K.K. Mustafi, Vice-Chancellor of the University, Dr. K.N. Shukla, Dean, Faculty of Arts and Professor & Head of the Department of Hindi of the University, and three experts viz., Dr. S.C. Dube, Dr. S.R.K. Chopra and Dr. T.B. Mayak, respondents 3, 4, 5, 6 and 7 respectively met to interview the candidates and to make their recommendation to the Executive Council of the University. After interviewing the aforesaid two candidates, the Selection Committee resolved to recommend respondent No. 8 herein for appointment to the aforesaid post of Professor of Anthropology.
On coming to know of the recommendation, the appellant filed the aforesaid petition ’under Article 226 of the Constitution challenging the recommendation mainly on the ground that two out of the aforesaid three experts viz., Dr. S.C. Dube and Dr. S.R.K. Chopra were biased against him and in favour of respondent No. 8. It was alleged by the appellant that the respondent had close relations with the aforesaid two. experts as he was instrumental in obtaining many remunerative assignments for them. It was. further averred by the appellant that whenever Dr. Dube visited Lucknow, he stayed with respondent No. 8. It was also averred by the appellant that Dr. Chopra had strained relations with him on account of straight election contest between him and the latter for the office of the President of Anthropology Section of the Indian Science Congress for 19574. The appellant further averred that in 1968 when he was serving in the Punjab University as a Lecturer in the Department of Anthropology headed by Dr. Chopra, the latter stubbornly opposed his application for leave to avail of the offer of fellowship from Harvard University and stopped forwarding his salary bills to the Executive, Council with the ulterior object of depriving him of the opportunity to attain higher academic qualification and thereby better his future prospects with the result that he was compelled to resign his job and surrender three months’ salary in lieu of notice to avail of the offer.
The petition was vigorously contested by respondent No. 8. On consideration of the material placed before it, the High Court, however, dismissed the application holding that though respondent No. 8 was the head of the department of Anthropology, he was not the only person responsible for bestowing various assignments either on Dr. Dube or on Dr. Chopra and that it was the Executive Council and the Academic Council which were responsible for giving those assignments to Dr. Dube and Dr. Chopra. It was further held by the High Court that there was nothing unusual in Dr. Dube and Dr. Chopra’s knowing and enjoying the hospitality of respondent No. 8. The fact that the appellant had an election contest with Dr. Chopra was also, in the opinion of the High Court, of no significance, as such like contests were very common and’ it could not be said that Dr. Chopra had developed such a degree of ill-will and hostility against the appellant for the latter’s standing as a candidate against him so as to render him incapable of acting impartially when the task of selecting the best candidate was assigned to him and that it was not possible to. presume that Dr. Dube and Dr. Chopra were in a position to influence the decision of the entire Selection Committee by injection bias in the minds of the other members. The High Court finally held that from the facts relied upon by the appellant, bias could not be spelt out. In arriving at its decision, the High Court relied upon the following observations made by Frank, J. of the United States of America in re. Linahan.(1)
"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 preju-
dices."
The High Court also held that the appellant having submitted to the jurisdiction of the Selection Committee, he could not be permitted to turn round and denounce the constitution of the Committee.
Counsel for the parties have reiterated before us the contentions raised on behalf of their clients before the High Court. In addition, it has been contended by counsel for respondent No. 8 that the impugned recommendation being in the nature of an interlocutory proceeding,, neither the writ petition nor the appeal arising therefrom could be maintained.
It is needless to emphasize that the principles of natural justice which are meant to .prevent miscarriage of justice are also applicable to domestic enquiries and administrative proceedings (See A.K. Karipak v. Union of India(2). It cannot also be disputed that one of the fundamental principles of natural justice is that in case of quasi judicial proceedings, the authority empowered to decide the dispute (t) [1943], 138F. 2nd 650 at 652. (2) [1969] 2 S.C.C. 262 :[1970] 1 S.C.R. 457 :A.I.R. 1970 S.C. 150. between opposing parties must be one without bias by which is meant an operative prejudice, whether conscious or unconscious towards one side or the other in the dispute. (See Nageswara Rao v.A.P. State Road Transport Corporation(1) and Gullapalli Nageshwar Rao v State of A.P.(2).
It would be advantageous at this stage to refer to the following observations made by this Court in Manak Lal v. Prem Chand(3).
"Every member of a tribunal that sits to try
issues in judicial or quasi-judical proceedings
must be able to act. judicially; and the essence of
judicial decisions and judicial administration is
that judges should be able to act impartially,
objectively and without any bias. In such cases
the test is not whether in fact a bias has affected
the judgment; the test always is and must be wheth-
er a litigant could reasonably apprehend that a
bias attributable’to a member of the tribunal might
have operated against him in the final decision of
the tribunal. It is in this sensethat it is often
said that justice must not only be done but must
also appear to be done."
Again as held by this Court in A. K. Karipak’s
case (supra), reiterated in S. Parthasarthi v.
State of Andhra Pradesh(4) and followed by the High
Court of Jarainu & Kashmir in Farooq Ahmed Pandey
and Ors. v. Principal Regional Engineering College
& Anr.(5) the real question is not whether a member
of an administrative Board while exercising
quasi-judicial powers or discharging quasi-judicial
functions was biased, for it is difficult to prove
the mind of a person. What has to be seen is
whether there is a reasonable ground for believing
that he was likely to have been biased. In decid-
ing the question of bias, human probabilities and
ordinary course of human conduct have to be taken
into consideration. In a group deliberation and
decision like that of a Selection Board, the mem-
bers do not function as computers. Each member of
the group or board is bound to influence the oth-
ers, more so if the member concerned is a person
with special knowledge. His bias is likely to
operate in a subtle manner.
At page 156 of "Principles of AdministratiVe
Law" by J.A.G. Griffith and H. Street (Fourth
Edition), the position with regard to bias is aptly
and succinctly stated as follows :-
"The prohibition of bias strikes against
factors which may improperly influence a judge in
deciding in favour of one party. The first of the
three disabling types of bias is bias on the sub-
ject-matter. Only rarely will this bias invalidate
proceedings. "A mere general interest in the
general object to be pursued would not disqualify,"
said Field J., holding that a magistrate who sub-
scribed to the Royal Society for the Prevention of
Cruelty to Animals was not thereby disabed
(1) [1959] Supp. 1 S.C.R. 319 :A.I.R. 1959 S.C.
308.
(2) A.I.R. 1959 S.C. 1376: [1960] 1 S.C.R. 580.
(3) [1957] S.C.R. 575 :A.I.R. 1957 S.C. 425.
(4) [1974] S.L.R. 427.
(5) [1975] J & K.L.R. 427.
from trying a charge brought by that body of cruel-
ty to a horse. There must be some direct connec-
tion with the litigation. If there is such preju-
dice, on the subject-matter that ,the court has
reached fixed and unalterable conclusions not
founded on reason or understanding, so that there
is not a fair hearing, that is bias of which the
courts wilt take account, as where a justice an-
nounced his intention of convicting anyone coming
before him on a charge of supplying liquor after
the permitted hours ...........
Secondly, a pecuniary interest, however, slight
will disqualify, even though it is not proved that
the decision is in any way affected.
The third type of bias is personal bias. A
Judge may be a relative, friend or business associ-
ate of a party, or he may be personally hostile as
a result of events happening either before or
during the course of a trial. The courts have not
been consistent in laying down when bias of this
type will. invalidate a hearing. The House of
Lords in Frome United Brewering v. Bath Justices(1)
approved an earlier test of whether "there is a
real likelihood of bias." the House of Lords has
since approved a dictum of Lord Hewart that
"justice should not only be done,, but should
manifestly and undoubtedly be seen to be done" al-
though it did not mention another test suggested by
him in the same judgment: Nothing is to be done
which creates even a suspicion that there has been
an improper interference with the course of jus-
tice."
At page 225 of his Treatise on "Judicial Review
of Administrative Action" (Third Edition), Prof.
S.A. De Smith, has stated as follows with regard to
Reports and Preliminary decisions :--
"The case-law on the point is thin, but on
principle it would seem that where a report or
determination lacking final effect may nevertheless
have a seriously judicial effect on the legally
protected interests of individuals (e.g. when it is
a necessary prerequisite of a final order) the
person making the report or preliminary decision
must not be affected by interest or likelihood of
bias."
From the above discussion, it clearly follows that what has to be seen in a case where there is an allegation of bias, in respect of a member of an administrative Board or body is whether there is a reasonable ground for believing that he was likely to have been biased. In other words whether there is substantial possibility of bias animating the mind of the member against the aggrieved party.
We do not, however, consider it necessary in the present case to go into the question of the.reasonableness of bias or real likelihood or bias as despite the fact that, the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the (1) [1926] A.C. 586. interview raise even his little finger against the constitution. of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not. now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal’s case (Supra) where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:---
"It seems dear that the appellant wanted to
take a chance to secure a favourable report from
the tribunal which was constituted and when he
found that he was confronted with an unfavourable
report, he adopted the device of raising the
present technical point."
It is also difficult to understand how the writ petition or for that matter the present appeal before us is maintainable when the recommenlation of the Selection Committee has still to be scrutinzed by the Excutive Council of the University and either accepted or rejected by t and other remedies by way of representation to. the Executive Council and an application for reference of the matter under section 68 of the Uttar Pradesh Universities (Reenactment and Amendment) Act, 1974, 0 the Chancellor are still open to the appellant and have not been. exmusted.
For the foregoing reasons, we find ourselves unable to allow the appeal. In the result, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs. M.R. Appeal dismissed.