PETITIONER:
G. SARANA
Vs.
RESPONDENT:
UNIVERSITY OF LUCKNOW & ORS.
DATE OF JUDGMENT28/07/1976
BENCH:
SINGH, JASWANT
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1976 AIR 2428 1977 SCR (1) 64
1976 SCC (3) 585
ACT
Doctrine of waiver--Bar of waiver, whether applicable to
later grivance against’bias’.
Constitution of India, Article 226--When alternative
remedies available, whether writ petition maintainable.
HEADNOTE
The appellant and respondent No. 8 applied for the
vacant post of Professor of Anthropology in the Faculty of
Arts, in answer to an advertisement put up by the Lucknow
University. A selection committee of five persons including
three experts, interviewed them and recommended respondent
No. 8 for the post. The appellant’s writ petition challeng-
ing the recommendation was dismissed by the High Court. The
appellant contended before this Court that two of the expert
members of the selection committee were unduly biased
against him and in favour of respondent No. 8. The appeal
was contested on two grounds. Firstly, that by submitting to
the jurisdiction of the selection committee, the appellant
had waived his right to denounce its constitution and sec-
ondly, that the impugned recommendation being an interlocu-
tory proceeding against which remedies were available, the
writ petition was not maintainable.
Dismissing the appeal, the Court,
HELD: 1. Despite the fact that the appellant knew all the
relevant facts,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 no now open to
him to turn round and question the constitution of the
committee.[70 A-B]
Manak Lal v. Prem Chand [1957] SCR 575=AIR 1957 S.C. 425,
applied.
Linahan [1943] 138 F. 2nd 650; A. K. Karipak v. Union of
India [1970] 1 SCR 457=ALR 1970 SC 150; Nageshwar Rao v.
State of A.P. [1960] 1 SCR 580=AIR 1959 SC 1376; S. Partha-
rarathi v. State of Andhra Pradesh [1974] 1 SLR 427; Farooq
Ahmad Bandey and Ors. v. Principal Regional Engineering
College & Anr. [1975] I&K L.R. 427; Principles of Adminis-
trative Law by I.A.G. Griffith and H. Street (4th edition)
and Judicial Review of Administrative Action’ (3rd Edition)
by Prof. S.A. De Smith, referred to.
2. The recommendation of the selection committee has still
to be scrutinised by the Executive Council of the University
and either accepted or rejected by and other remedies by
way of representation to the executive council and an
application for reference of the matter under s. 68 of the
Uttar Pradesh Universities (Reenactment and Amendment) Act,
1974, to the Chance or are till open to the appellant and
have not been exhausted The writ petition or he present
appeal before us is not maintainable. [70 C-D]
JUDGMENT
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 di-
rected against the judgment and order dated March 31, 1975,
of Lucknow Bench of
65
the Allahabad High Court dismissing the writ petition No.
405 of 1974 filed by the appellant challenging the recommen-
dation made by a Selection Committee of the Lucknow Univer-
sity (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 follow-
ing 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.
66
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 re-
solved 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 appel-
lant that the respondent had close relations with the afore-
said 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 pros-
pects 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.
67
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 elec-
tion 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 impar-
tially 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 appel-
lant, bias could not be spelt out. In arriving at its
decision, the High Court relied upon the following observa-
tions 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 con-
stitution 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 admin-
istrative proceedings (See A.K. Karipak v. Union of
India(2). It cannot also be disputed that one of the funda-
mental 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.
68
between opposing parties must be one without bias by which
is meant an operative prejudice, whether conscious or uncon-
scious 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.
69
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.
70
interview raise even his little finger against the consti-
tution. 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 maintain-
able when the recommenlation of the Selection Committee has
still to be scrutinzed by the Excutive Council of the Uni-
versity 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 with-
out any order as to costs.
M.R. Appeal
dismissed.
71