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2024 (4) TMI 1402
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....onclusions 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: - Sl. No. Candidate Committee Member Relationship 1. Krishnadatt Awasthy Pushpa Dvivedi (Chairman) Maternal Nephew 2. Shyama Dvivedi Pushpa Dvivedi (Chairman) Sister-in-law (Nanad) 3. Prabha Dvivedi Pushpa Dvivedi (Chairman) Sister-in-law (Devrani) 4. Rekha Avasthi Pushpa Dvivedi (Chairman) Niece 5. Prabhesh Kumari Pushpa Dvivedi (Chairman) Niece 6. Devendra Awasthi Pushpa Dvivedi (Chairman) Ne....
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....r 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 Rajesh Singh Chauhan, son Som Prakash Singh have also been selected. Facts which have been admitted b....
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....led 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 Mad....
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....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: - "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 Sele....
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.... 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 mar....
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....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. 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....
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.... 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 revisionists. That apart, the learned Single Judge had called for ....
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.... 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 expres....
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.... 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 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 bla....
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....nd 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 ....
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....d 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 9B 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 right-minded persons would think that, in the circumstances, there was a 'real likelihood' of bias on his part....
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....d 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, 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 sh....
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.... .) But in R. v. Camborne, JJ. ex. p Pearce [(1955) 1 GB 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 reason....
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....as, applying the principle "justice should not only be done but it should be seen to have been done" the Court held as under: - "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 h....
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....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 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 ha....
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....e 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....
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....pply; 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."....
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.... 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 fa....
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....udgment, 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 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. (....
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....his principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision." After going through the facts of this case as discussed above, the present case falls within the ambit of the principle laid down in paragraph 33 (3) and (6), of the above case. 43. In the recent decision this Court in State of Uttar Pradesh Vs. Sudhir Kumar Singh & Ors .; 2020 SCC Online SC 847, in paragraph 39 explaining the principle of natural justice ....
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....ngly as a matter of fact. 44. In the narration of the facts as discussed above, it is clear that the appellants have emphasized on their non-joinder at the initial stage before the Collector. A bare perusal of the order passed by the Collector reflects that it is based on the counter-affidavit filed by the Janpad Panchayat whereby it is established that the appellants were related to the members of the selection committee. Subsequently, the collector held the process to be vitiated by bias by applying the test of reasonable likelihood of bias. Once again, upon challenge being made by the appellants before the revisional authority, their relationship with the members of the selection committee was not disputed yet violation of doctrine of audi altrem partem was alleged merely due to non-joinder. After hearing them, the plea of non-impleadment did not find force before the revisional authority and the challenge did not succeed. Aggrieved appellants moved a writ petition before the High Court where ample opportunity was given by learned Single Judge and they were allowed to inspect the records. Thus, an opportunity to controvert the findings of the Collector and the Commissioner an....
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....hed the order of the Learned Single Judge and the Division Bench based on the finding of violation of natural justice. 12. Residual and crucial question that remains to be adjudicated is whether principles of natural justice have been violated; and if so, to what extent any prejudice has been caused. It may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice does not improve the situation, "useless formality theory" can be pressed into service. 23. As was observed by this Court we need not go into "useless formality theory" in detail; in view of the fact that no prejudice has been shown. As is rightly pointed out by learned counsel for the appellants, unless failure of justice is occasioned or that it would not be in public interest to dismiss a petition on the fact situation of a case, this Court may refuse to exercise the said jurisdiction (see Gadde Venkateswara Rao v. Govt. of A.P. [AIR 1966 SC 828] ). It is to be noted that legal formulations cannot be divorced from the fact situation of the case. 48. Circling back to the facts of the instant case, when the hindsi....
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....itment. It provides for two modes of selection, namely, by direct recruitment and by promotion. 5. Under Rule 5(8), the Selection Committee for direct recruitment was statutorily prescribed and was to consist of members as specified in Schedule II and was to be constituted by the Zila Panchayat or the Janpad Panchayat. Under Schedule II for Siksha Karmi Grade III, the Selection Committee was to consist of the following :- 1. Chairperson, Standing Committee of Education of Janpad Panchayat; 2. Chief Executive Officer, Janpad Panchayat; 3. Block Education Officer (Member Secretary); 4. Two specialist in the subject to be nominated by the Standing Committee for Education of whom one shall be woman; and 5. All members from the Standing Committee of whom atleast one belongs to Scheduled Castes, Scheduled Tribes or OBC, in case there is no SC/ST/OBC member in the Standing Committee then the same shall be nominated from the General Body. 6. Under sub-rule (9) of Rule 5, the Committee was to assess the candidates called for interview and award marks as follows :- a) 60% marks for marks obtained in the qualifying examination as pre....
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....r refrain from taking any action under this rule in respect of such case until the final disposal of such proceeding by such officer or may withdraw such proceeding and pass such order as it may deem fit. 9. Power of appellate or revisional authority .- The appellate or revisional authority after giving an opportunity to parties to be heard and after such further enquiry, if any, as it may deem necessary subject to the provisions of the Act and the rules made thereunder, may confirm, vary or set aside the order or decision appealed against." These are the important rules for the disposal of this case. Resolution for recusal - during Interview: 11. The Standing Committee of the Janpad Panchayat, before the recruitment process, on 01.08.1998, passed a resolution whereunder it was resolved that members of the selection committee whose close relatives are candidates will not participate in the proceedings/deliberations and the two marks available to them for allotment to the candidate will be allotted to the Chief Executive Officer. 12. It was also resolved that if any close relative of any member, officer or subject expert appears for interview, then the marks to ....
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....selected candidates were named and the appointments challenged. Archana Mishra (R-4), inspite of having knowledge did not implead them. Para 9 is extracted hereunder :- "9. That the nepotism has been adopted during the selection process by violating the principles of natural justice by misusing the post by the President of the Select Committee and other members by appointing their relatives, for example the candidates who have been selected at Serial No. 56 and 57 of the Selection List are Shyama Dvivedi daughter of Shiv Dass Dvivedi who is the sister-in-law (Nanad) of Educational Committee's President Smt. Pushpa Dvivedi and her sister-in-law (Devrani) Smt. Vibha Dvivedi wife of Kailash Dvivedi, her nephew (sister's son) Devender Kumar Avasthi and her niece (sister's daughter) Rekha Avasthi daughter of Bran Bhushan Avasthi. In the same way, by misusing his post, the member of the Committee namely Swami Singh Senger has got selected his son Shamsher Singh (112), his daughter-in-law Ramrani wife of Rudra Pratap Singh (195), nephews Rajesh Singh Chauhan and Om Prakash Singh Chauhan and the Member Shri Harsh Vardhan Tripathi has got selected his real nephew Ravind....
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....; and one son of Bhagwat Prasad had been selected. In all, 14 individuals including the 10 appellants by name, figured in the order of the Collector in para 3. 17. The Collector found that under Section 40(c) of the Panchayat Raj Act, any of the Office Bearers shall not cause financial gains to their relatives. It was also found that under Section 100 of the Panchayat Raj Act, acquisition by any member, office bearer or employee of any interest directly or indirectly in any contract or employment was strictly prohibited. 18. The Collector held that there was no necessity to summon the relatives since it was proved that the appointment of the relatives was contrary to the procedure. It was also held that since the ex-officio respondents have admitted about the selection of the relatives, the selection of the 14 candidates, including the 10 appellants, was cancelled and their appointments were terminated. 19. It is important to notice at this stage itself, Section 40(c) and Section 100 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, which reads as under :- "40 (c) the use of position or influence directly or indirectly to secure employment for any relati....
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.... the entire selection had not been cancelled and only the selection of the 14 appointees including the 10 appellants had been cancelled. Ultimately, the revision was dismissed by an order of the Commissioner dated 14.03.2000. Since the order of the Commissioner in revision proceedings is crucial, the operative part is extracted hereinbelow :- "6. (sic) On going through the record received for consideration on the arguments of both the parties, I have found that while examining the selection process, the Collector, Chhatarpur has clearly mentioned in his order dated 02.06.1999 that the members of the Selection Committee have selected their relatives. The respondent Janpad Panchayat has admitted that the Committee President Smt. Pushpa Dvivedi's sister-in- law (Nanad) Shyama Dvivedi, her daughter Shiv Dass Dvivedi, her sister-in-law (Devrani) Smt. Vibha, two real sisters of her sister-in-law namely Kumari Rashmi Dvivedi and Kumari Rita Dvivedi have been selected at Serial No. 9 and 4 of the Select List. The Respondent has also admitted that Devender Kumar Avasthi son of Brij Bhushan Avasthi is the nephew (sister's son) of President and Rekha Avasthi daughter Brij Bhu....
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....000, in the writ petition filed, an order directing maintenance of status quo was made. The writ petition came to be dismissed by the learned Single Judge on 31.07.2008. Before the learned Single Judge, grounds of violations of natural justice were argued. Apart from that, one of the other main grounds argued was that the role played by the relatives has not been examined and that it was not established whether the selection was influenced by their participation. 23. It was pointed out that pursuant to the resolution passed before the selection by the Standing Committee on 01.08.1998, the relatives concerned had left the process of selection during the interview of the candidates who were their relatives. It was also pointed out that the marks to be given by the relatives were, as per the resolution, allotted to the Chief Executive Officer, who gave the marks. As such, it was argued that there was no reason to set aside the selection merely because there were relatives in the Selection Committee since they had recused when the case of the relatives came up. Yet another ground about the maintainability of the appeal was raised. Since that was not pressed before us, that is not be....
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....vailable with her for allotment to the candidate were allotted by the Chief Executive Officer. Similarly, when relatives of Shri Swami Singh appeared for the interview, he is said to have left the proceedings and the two marks available with him were allotted by the Chief Executive Officer. On this ground, it was emphasized by Shri M.L. Choubey that the presence of relatives was of no consequence and it has not materially affected the process of selection. This aspect requires consideration. 22. As already indicated hereinabove under the statutory rules, out of l00 marks to be allotted 60% marks is based on the educational qualification. 25% marks is to be allotted by the Members of the Committee on the basis of experience and various other factors and thereafter 15% marks is to be allotted for oral interview. Records indicate that in the Selection Committee there were about 10 Members and out of these Members, two marks each were to be allotted by Smt. Pushpa Dwivedi, Shri Swami Singh, Smt. Rajrani Shukla - Member, Shri Bhurelal Khangar - Member, Shri Harshvardhan Singh, another Member. Thereafter, one mark each were to be allotted by Shri Ramdeo Patel, representative of ....
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....ht it appropriate to interfere in the matter. 23- Petitioner No.6 Sumer Singh is son of Shri Swami Singh, a Member of the Selection Committee, and he has been allotted full 15 marks i.e. 100% marks have been allotted by each of the Committee Members. It is found that in this manner benefit in some way or the other is extended to each of the petitioners and this is the reason why the Collector and the Commissioner interfered in the matter. It is further found that one Badri Prasad, son of Bhagwat Prasad has been appointed and he has been given 9 marks for the experience, but in his file no experience certificate is available. It is found that petitioner Gita Rawat is the real sister of Smt. Pushpa Dwivedi and she has been selected after giving her high marks in the oral interview, even though she has only received 55% marks in the qualifying examination i.e. Higher Secondary. It is clear from a perusal of the records that eight close relatives of Smt. Pushpa Dwivedi, President of the Selection Committee, and Shri Swami Singh, a Member of the Selection Committee, have been appointed. The relatives selected are either sons, daughter, sisters, sister-in-law of the Members and ....
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....hat even during the pendency of the writ appeal, the appellants continued to work. Appeal in this Court: 31. Challenging the order of the Division Bench dated 15.12.2008, special leave petitions were filed and on 19.01.2009, while issuing notice, this Court granted status quo in the matter. Thereafter, leave was granted on 12.05.2011 and the ad-interim orders granted earlier were made absolute till the disposal of the appeals. Contentions of the parties :- 32. Before us, Mr. Neeraj Shekhar, learned counsel for the appellants has reiterated the contentions raised in the courts below on the issue of violation of natural justice and also about the factum of the committee members not influencing the selection. Reliance is placed on Daffodills Pharmaceuticals Limited and Another vs. State of Uttar Pradesh and Another, 2019:INSC:1366 = (2020) 18 SCC 550 and Javid Rasool Bhat and Others vs. State of Jammu and Kashmir and Others, (1984) 2 SCC 631. Learned counsel for the appellants has also sought to distinguish A.K. Kraipak (supra) and S. K. Sharma (supra). He also relied upon Chairman, State Bank of India and Another vs. M.J. James, 2021:INSC:732 = (2022) 2 SCC 301 to highlig....
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.... - S.N O NAME OF THE AP- PLICAN T MARKS OB- TAINED IN % (INTERMEDIAT E) 60% OF MARKS OBTAINE D MARKS ON EXPERIENC E MARKS OBTAINED IN INTER- VIE W TOTA L 124 RAM SAKHA S/O RAM MILHAN HARDENIA 46.25 27.75 17(TWO YEAR) 13.60 58.35 538 ANIL KUMAR S/O VIPIN BIHARI 60 36 9(ONE YEAR) 13.70 58.70 227 SAJID HUSSAIN S/O JA- MUED HUSSAIN 72.62 43.57 15 58.57 33. We have also heard Ms. Mrinal Gopal Elker, learned counsel for the respondent-State of M.P. and Mr. Avadhesh Kumar Singh, learned counsel for respondent No. 4 - Archana Mishra and the parties who have filed applications for impleadment. Though no formal orders of impleadment were made, arguments were heard on the application. They contend that the orders of the Collector, revisional authority, learned Single Judge and the Division Bench warranted no interference. They relied on S.K. Sharma (supra) and reiterated the aspect of there being no prejudice due to the non-compliance of the principles of natural justice. They highlighted the fact that even though the....
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....hat the appellants, after a process of selection, were appointed as Shiksha Karmi Grade-III in the Panchayat and orders of appointments were issued to them on 17.09.1998. It is also undisputed that the appellants joined the post and started discharging their duties. This being the undisputed factual position, when Archana Mishra (R-4) challenged the selection and the consequential appointment, there was an obligation on her part, under Rule 9, to implead the selected candidates whose selection she was expressly challenging. At least at the stage when the Collector identified all the 14 names, Rule 9 of the A&R Rules, ought to have been complied with and notices ought to have been issued giving an opportunity to the selected candidates to set out their version and thereafter hold such enquiry as the Collector may deem necessary. This was also not done. This is all the more when only the appointment of the 14 candidates of the 249 appointees/candidates were set aside on the ground that they were relatives and it was not a case of setting aside of the entire selection. It is well settled that in service matters when an unsuccessful candidate challenges the selection process, in a case....
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....ion affecting their right .... " [Emphasis supplied] The above passage very much echoes what Lord Megarry said in John vs. Rees and Others, [1969] 2 All E.R. 274 at 309 FG :- "It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. "When something is obvious," they may say, "why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start." Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to ....
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....s, providing for supply of copies of statements, not later than three days before the commencement of the examination by the witness before the enquiring authority. It was expressly noticed in the judgment that the records of the case did not disclose that the delinquent had protested about denial of adequate opportunity to cross-examine. 41. In fact, S.K. Sharma's case (supra), after noticing the leading case of Ridge vs. Baldwin, 1964 AC 40 expressly records that where there is total violation of principles of natural justice, the violation would be of a fundamental nature. S.K. Sharma's case (supra) explicitly records that "a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity", was highlighted. The principle in S.K. Sharma's case (supra) about the distinction between "no opportunity" and "no adequate opportunity" has also been followed in M.J. James (supra). 42. Unlike in S.K. Sharma's ....
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..... All this may seduce the mind and propel it to condone the total denial of opportunity. A conscious effort needs to be made to steer clear of that trap. 46. The principle of prejudice as set out in S.K. Sharma's case (supra) had absolutely no application to the present case as the present was a case of complete denial of opportunity. The exception was wrongly invoked and misapplied to the facts of the present case. Question No.3 Does the violation at the original stage of the principles of natural justice stand cured by the revisional proceeding ?:- 47. The second reason given by the learned Single Judge and affirmed by the Division Bench was that the appellants had full opportunity before the revisional authority and the High Court. The relevant finding from the judgment of the learned Single Judge is extracted hereinbelow :- "17. Even though when the appeal was filed by respondent Smt. Archana Mishra before the Collector, petitioners were never heard and the Collector passed the order without hearing the petitioners, the matter did not end there. Petitioners availed of the opportunity of filing a revision before the Commissioner. When the matter travelle....
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.... of attack also fails being unsustainable." The above finding for a start overlooks Rule 5(1)(b) and the body of case law that are relevant. 48. The question about whether at all the breach of natural justice can be cured at the appellate stage and if so in what circumstances has vexed the courts for the last several decades. In England, it was Lord Megarry who spoke first in Leary vs. National Union of Vehicle Builders, [1970] 2 All ER 713. The learned Judge had no doubt in his mind when he proclaimed, "As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body." This remained the legal position till Ferd Dawson Calvin vs. John Henry Brownlow Carr & Ors., (1979) 2 WLR 755 came on the horizon. Lord Wilberforce, speaking for the Privy Council felt that the principle elucidated by Lord Megarry was too broadly stated. The Privy Council held: "It remains to apply the principles above stated to the facts of the present case. In the first place, their Lordships are clearly of the view that the proceedings before the Committee were in the nature of an appeal, not by wa....
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....or has decided to certify or not to certify, the court is empowered to confirm or quash the decision, to vary the decision if a certificate has been issued by the auditor, and in any case to give any certificate which the auditor could have given. The language describing the court's powers could not possibly be any wider. Procedurally there is nothing either in the statute or in the relevant rules of court to limit in any way the evidence which may be put before the court on either side .... " 50. Applying this test in Lloyd (supra), the answer in the present case is simple. Rule 5(1)(b) of the A&R Rules does not provide an ample review or a full-fledged enquiry at the revisional stage. The revision was to be entertained only if it is on the point of law and not on facts. The discussion, however, on this issue would not be complete unless a survey of the judgments of this Court is done. 51. The seeds for this thought-process was sown by Chief Justice S.R. Das in The State of Uttar Pradesh vs. Mohammad Nooh, 1958 SCR 595. In fact, Justice Jeevan Reddy noticed this judgment in S.K. Sharma's case (supra). Chief Justice Das speaking for the majority in the Constitution Be....
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....his will be evident from a perusal of Clause 3 of Schedule B itself. The character of the appeal contemplated under Clause 3(ii) of Schedule B is only with regard to the examination of the following aspects: (1) whether the order or approval of the plan is within the powers of the Bombay Act, and (2) whether the interests of the appellant have been substantially prejudiced by any requirement of this Act not having been complied with. The appeal is confined under Clause 3 of Schedule B to the examination of only the twin aspects referred to above. There is no provision for entertainment of any other relevant objection to the acquisition of land. For example a person whose land is acquired may object to the suitability of the land for the particular purpose acquired. He may again show that he will be at an equal disadvantage if his land and house have to be acquired in order to provide accommodation for the poorer people as he himself belongs to the same class of the indigent. He may further show that there is a good alternative land available and can be acquired without causing inconvenience to the occupants of the houses whose lands and houses are sought ....
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....ic work on "Administrative Law" 5th edn. But as that learned author observes (at p. 487), "in principle there ought to be an observance of natural justice equally at both stages", and If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing: instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial. And he makes reference to the observations of Megarry, J. in Leary v. National Union of Vehicle Builders. Treating with another aspect of the point, that learned Judge said: If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the....
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....tive pride. In such a case, after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding." 55. L.K. Ratna's case (supra) was distinguished in United lanters Association of Southern India vs. K.G. Sangameswaran and Another, (1997) 4 SCC 741. That was a case where the jurisdiction of the Appellate Authority to record evidence and to come to its own conclusion on the questions involved was very wide. The appellate provision provided that even if the evidence is recorded in the domestic enquiry and the order of dismissal is passed thereafter, it would still be open to t....
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....case, the appellant has contended that the respondent did not participate in the domestic enquiry in spite of an opportunity of hearing having been provided to him. He was also offered the inspection of the documents, but he did not avail of that opportunity. He himself invoked the jurisdiction of the Appellate Authority and the order of dismissal passed against him was set aside on the ground that the appellant did not hold any domestic enquiry. It has already been seen above that the Appellate Authority has full jurisdiction to record evidence to enable it to come to its own conclusion on the guilt of the employee concerned. Since the Appellate Authority has to come to its own conclusion on the basis of the evidence recorded by it, irrespective of the findings recorded in the domestic enquiry, the rule laid down in Ratna case will not strictly apply and the opportunity of hearing which is being provided to the respondent at the appellate stage will sufficiently meet his demands for a just and proper enquiry. [emphasis supplied] 56. In Jayantilal Ratanchand Shah vs. Reserve Bank of India and Others, (1996) 9 SCC 650, A Constitution Bench of this Court held that opportu....
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....ng of Claims) Act, 1985. 58. In The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another vs. Ramjee, (1977) 2 SCC 256 cited by the learned counsel for the private respondents in the written submissions again does not directly deal with this issue. There the issue was about the interpretation of Regulation 26 of the Coal Mines Regulations, which read as under :- "26. Suspension of an Overman's Sirdar's, Engine driver's, shot firer's or Gas-testing Certificate- (1) If, in the opinion of the Regional Inspector, a person to whom an Overman's, Sirdar's, Engine-driver's, Shot- firer's or Gas-testing Certificate has been granted is incompetent or is guilty of negligence or misconduct in the performance of his duties, the Regional Inspector may, after giving the person an opportunity to give a written explanation, suspend his certificate by an order in writing. (2) Where the Regional Inspector has suspended a certificate under sub-regulation (1) he shall within a week of such suspension report the fact to the Board together with all connected papers including the explanation if any received from the person conce....
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....ndents. 59. The principles deducible are as follows :- i) audi alteram partem as a facet of natural justice wherever applicable at the original stage ought to be strictly complied with. ii) In cases where the jurisdiction of the appellate/revisional/higher body is circumscribed like in Farid (supra) and in the case at hand, courts ought to reject the argument that the hearing before the appellate/revisional/ higher body, has cured the breach of the audi alterm partem rule at the original stage. iii) Ordinarily, violation of the audi alteram partem rule, at the original stage, will not be curable in appeal/revision. However, if the jurisdiction of the appellate/revisional/higher body is comprehensive as found in Jayantilal Ratan Chand (supra) and Sangameswaran (supra), the Courts may be justified in concluding on the given facts, that the breach of the audi alteram partem rule, in the original stage, has stood redressed due to the scope and sweep of the higher proceeding. However, it will be purely within the discretionary power of the court depending on the facts of the case. This, in turn, will depend on the court being satisfied that the fair opportu....
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....viding for recusal of the committee members from the statutory committee and for re-allocation of marks by vesting it in the Chief Executive Officer, was not even discussed in the orders. It is difficult to speculate, what the response of the Collector and the revisional authority would have been, if they were posted of the recusal resolution. Neither in the order of the Collector nor in the order of the revisional authority is the definition of relative as available in explanation 40(c) of the M.P. Adhiniyam set out or discussed. Admittedly, seven out of the 14 candidates did not come within the definition of 'relative', under the explanation to Section 40(c). 63. Learned counsel for the appellants here have, citing the resolution of 01.08.1998, contended that adequate precautions like recusal and absence from the venue was taken. Learned counsel contends that there is no material to show that the committee members influenced the selection process. Even the Collector, it is pointed out, has recorded in the order that it was not possible for the Collector to consider the determination of the marks of interview since it was the discretion of the committee. Even after so h....
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.... one of the persons, who sat as member of the Selection Board, was himself one of the persons to be considered for selection. He participated in the deliberations of the Selection Board when the claims of his rivals were considered. He participated in the decisions relating to the orders of preference and seniority. He participated at every stage in the deliberations of the Selection Board and at every stage there was a conflict between his interest and duty. The Court had no hesitation in coming to the conclusion that there was a reasonable likelihood of bias and therefore, there was a violation of the principles of natural justice. In the case before us, the principal of the Medical College, Srinagar, dissociated himself from the written test and did not participate in the proceedings when his daughter was interviewed. When the other candidates were interviewed, he did not know the marks obtained either by his daughter or by any of the candidates. There was no occasion to suspect his bona fides even remotely. There was not even a suspicion of bias, leave alone a reasonable likelihood of bias. There was no violation of the principles of natural justice." 67. It is also seen tha....
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....s contended by the learned counsel for the appellants, even to a case other than a Public Service Commission the principle of recusal has been recognized and that judgment in Javid Rasool Bhatt (supra) has been endorsed in Ashok Kumar Yadav (supra). 70. In the present case, it was a statutory committee framed under the Recruitment Rules and to ensure a fair selection, recusal resolution was passed by the standing committee before the selection. J. Mohapatra (supra) recognizes the distinction between committees constituted under administrative measures and committees under statutory rules or regulations, while explaining the ease with which composition in cases of non-statutory committees could be changed. 71. Learned counsel drew attention to the chart (set out in para 32 above) to demonstrate that, in some instances, the marks obtained by the Complainant - Archana Mishra and the parties seeking impleadment in the interview, were more than the marks secured by some of the appellants. Had an opportunity being given to them before the Collector they would have demonstrated these facts, to dispel the argument of bias and favouritism, contends the learned counsel. 72. Learned ....