Caveat No. 3610/2018
Caveat stands discharged.
LPA No. 128/2018
1. In this Letters Patent Appeal, appellant has challenged the judgment and order dated 28.08.2018Â passed in SWP No. 311/2007, whereby inter-
alia the appointment of private respondents 5 to 43 in the writ petition, as Junior Engineers (Electrical) on contractual basis, was quashed.Â
2. Briefly stated the material facts are:-
3. Notification No.03 of 2006 dated 27.06.2006 was issued by the Deputy Commissioner (District Development Commissioner), Doda, inviting
applications from eligible candidates for filling up the posts inter-alia of Junior Engineers (Electrical) on contractual basis for a period of one year.
4. The following is the break-up of the posts; department-wise and categorywise:-
Public Works Department (Roads & Bridges)- Junior Engineer(Electrical): 4500-7000
 Open  : 01
 Total  : 01
Power Development Department Junior Engineer (Electrical):4500-7000.
 Open  : 14
 SC  : 02
 ST  : 03
 RBA  :  05
 ALC  :  00
 OSC  : 01
 Total  : 25
Qualification and criteria for the selection is as under:-
The qualification prescribed for the posts was degree/three years diploma in Electrical Engineering from a recognized Institute, whereas, the selection
criteria was :-
 Weightage to the marks obtained in  : 80 points
 diploma/degree (Pro rata)  Â
 Weightage for viva voce   :  20 points
 Total     :  100 points.
5. The petitioner, who applied under the RBA category, being a degree holder in Electrical Engineering, however, did not find himself in the select list
as he secured 53.56 points, whereas, the merit of the last selected candidate under RBA category was 56.78 points. Being aggrieved of his non-
selection, respondent No.1 in the instant appeal preferred SWP  No. 311/2007, challenging  the   selection and appointment of
the private respondents 5 to 43 in the writ petition interalia on the following grounds:-
a) That the selection criteria prescribed by the official respondents was arbitrary, inasmuch as the respondent No.2Â treated the diploma holders and
degree holders at par for the purpose of evaluating academic merit.
b) That 20 points prescribed for viva voce were on the higher side and could convert merit into de-merit and vice-versa.
c) That the selection was conducted arbitrarily inasmuch as in some cases marks obtained in the final semester of the qualifying examination were
taken into consideration, while in others, aggregate marks were considered, which adversely affected the merit inter-se between the candidates.Â
d) That the process of selection stood vitiated on account of bias/likelihood of bias inasmuch as one of the expert members namely Navdeep Gupta, an
Executive Engineer, was the father of one of the selected candidates namely Sandeep Gupta (respondent No.7 in the writ petition and appellant
herein).
e) That the respondents 5 & 6 were not eligible and possess neither diploma nor degree in Electrical Engineering.Â
6. After considering the objections filed by the respondents, the writ court allowed the petition and quashed the selection and appointment of private
respondents 5 to 43. Insofar as respondents No. 5 & 6 are concerned, the writ court held that the said two respondents were ineligible as they had
only an ITI certificate, which was neither equivalent to a diploma nor to a degree.  Â
7. While quashing the selection of respondent No.7, the writ court held that his selection was unsustainable in law inasmuch as the presence of the
father of the said respondent No. 7, who was one of the expert members, was a reason good enough to infer reasonable likelihood of bias.
Reliance in this regard was placed on the Apex Court judgment in A.K.Kraipak and Others vs. Union of India and Others, (1969) 2SCC 262.
8. The writ court also accepted the plea of the petitioner that the Selection Authority had considered the final semester result in some cases and in
some cases, the result of the aggregate marks obtained by the candidates were considered, which had adversely affected the merit position of some of
the candidates.Â
Other contentions raised by the petitioner with regard to excessive prescription of viva voce marks as also the equal weightage given to the diploma
holders for calculation of academic merit, were rejected. While allowing the writ petition, in Paragraph 22 of the judgment, the writ court held as
under:-
“22. In view of the facts and circumstances and the reasons given herein above, the appointment of respondents 5 to 43 cannot be wholly
sustained. The selection and appointment of respondents 5 and 6 has already been held to be bad, the same shall, therefore, stand quashed. Similar is
the fate of respondent No.7 whose selection and appointment is also vitiated and shall be deemed to have been quashed. The respondent No.2 shall
re-evaluate the academic merit of all eligible candidates who had participated in the selection process by taking into consideration the aggregate of the
marks of all the years of degree/diploma, as the case may be. The marks given by the Selection Committee in the viva-voce shall, however, remain
the same. The merit of eligible candidates shall be re-worked and determined afresh and select list shall be re-drawn. Those of the appointed
candidates, who will still make it to the select list, shall not be disturbed, whereas those who on redetermination of the merit fall short of requisite merit
to be in the select list, shall be ousted. The new candidates, if any, coming in the selection zone, shall be offered the appointment retrospectively with
effect from the date the private respondents were appointed with all consequential benefits minus the monetary benefits. Let the exercise, as directed
above, be undertaken and concluded within a period of eight weeks from the date the certified copy of this order made available to respondent no.2.Â
Disposed of as above along-with connected MP(s).â€
9. Counsel for the appellant urged that the view expressed by the writ Court based upon A.K. Kraipak’s Judgment, on which overwhelming
reliance had been placed, was erroneous in law keeping in view the fact and the circumstances of the case inasmuch as it had totally ignored the
ratio of the subsequent judgments as discussed in Jaswant Singh Nerwal Vs. State of Punjab & ors, 1991 Supplementary SCC 313.
10. Counsel for the appellant, however, was clear in limiting his challenge to the judgment to the extent only of protecting his right of consideration
for selection along with other candidates whose merit had been directed to be re-determined afresh by taking into consideration the aggregate
marks of all the years of their degree/diploma courses coupled with the marks obtained by the candidates in the interview. The apprehension
expressed by the counsel for the appellant was that while other candidates whose selection had been quashed would be considered afresh for the
purpose of re-determination of merit, the appellant’s case would not be so considered in view of the findings recorded that the selection of the
appellant, who was respondent No. 7 in the writ petition, stood vitiated on account of bias.
11. Heard learned counsel for the parties.
12. On a perusal of the judgment and order impugned, it can be seen that the writ Court by placing reliance upon the judgment of the Hon’ble
Apex Court in A. K Kraipak’s case, has held the selection of the appellant (respondent No 7) in the writ petition stood vitiated on account of
likelihood of bias inasmuch as the father of the appellant was a member of the Selection Committee, in which selection process, the appellant had
also participated. Since the basis for quashing the selection of the appellant herein finds its genesis in the judgment of the Hon’ble Apex
Court in A. K. Kraipak’s case, it would be pertinent to refer to the same as also a few others, which followed thereafter.
Bias/likelihood of bias
13. The facts in A. K. Kraipak’s Case were that a selection Board was constituted by the Central Government for selecting the officers to the
Indian Forest Service from out of those, who were serving in the Forest Department of the State of Jammu and Kashmir. In addition to other
members of the Board, one Naqishbund, who was the then Acting Chief Conservator of Forest, Jammu and Kashmir, was also a member.
14. It is not out of place to mention here that Naqishbund himself was also one of the candidates seeking to be selected to the All India Forest
Service. However, at the time when his own name came up for consideration, he recused himself.
15. Finally, pursuant to the recommendation made by the Board, a Notification came to be issued by the Government of India, which came to be
challenged on the ground that the selection stood vitiated inter alia on the ground of contravention of principles of natural justice.
16. The Hon’ble Apex Court in A.K. Kraipak’s case (supra) held that Naqishbund was party to the preparation of the select list in order of
preference and that he was shown as number 1 in the list and to that extent, he was undoubtedly a judge in his own case and that was a
circumstance, which was abhorrent to the concept of justice. What was stated by the Hon’ble Apex Court in Paragraph 15 of the judgment
(supra)Â can fruitfully be reproduced as under:
….15 It is unfortunate that Naqishbund was appointed as one of the members of the selection Board. It is true that ordinarily the Chief
Conservator of Forest in a State should be considered as the most appropriate person to be in the selection board. He must be expected to
know his officers thoroughly, their weaknesses as well as their strength. His opinion as regard their suitability for selection to the All India
Service is entitled to great weight. But then under the circumstances it as improper to have included Naqishbund as a member of the selection board.
He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did
not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection
board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board
when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in
order of preference. At every stage of his participation in the deliberations of the selection board there was a conflict between his interest and duty.
Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to
prove that 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……â€
17. In Javid Rasool Bhat and Ors Vs. State of J&K and others (1984) 2SCC 631, admissions to the Medical College at Srinagar and Jammu came
to be challenged inter aliaon the ground that the selection stood vitiated by the presence of the father of one of the candidates in the selection
Committee. However, in the selection process, the Principal of the Medical College, Srinagar, who was a member of the Selection Committee as
also the father of one of the candidates, who had applied for selection, had informed the Selection Committee at the time of very outset about that
fact and had declared that he would have nothing to do with the written test and would not be present when his daughter would be interviewed,Â
which suggestion was accepted by the Selection Committee as the same was stated to be in accord with the generally accepted procedure adopted by
the Public Service Commissions everywhere.Â
18. It appears that the Principal of the Medical College, Srinagar disassociated himself from the written test and did not participate in the proceedings
when his daughter was interviewed.Â
19. It was held that there was no occasion to suspect the bonafides of the Principal even remotely and that there could be no suspicion of bias leave
alone the likelihood of bias inasmuch as the Principal of the Medical College, Srinagar at the very outset had disassociated himself from the written
test and the interview and also did not know the marks obtained either by the his daughter or by any of the candidates.Â
20. In Jaswant Singh Nerwal Vs. State of Punjab & ors, 1991 Supp(1)Supreme Court Cases 313, the father of the selected candidate, who was a
member of the Commission, had recused himself in the deliberation when his son appeared in the viva-voce. It was inter alia held that the
selected candidate’s father did what was expected from him in having declined to participate in the selection made by the Public Service
Commission when his son went for viva-voice test. It was held that there was no material on the basis of which it could be concluded that the other
members of the Commission could keep a track of the comparative merit of each of the 540 candidates, who had appeared before them, so as to
manipulate a favourable result in favour of the member’s son.
21. Testing the facts of the present case on the touchstone of the law supra, we find that there was no material placed before the writ Court, which
would suggest that apart from recusing himself, the appellant’s father, who was a part of the selection Committee, was also having the
knowledge of the marks obtained by the other candidates as regards their academic qualification or for that matter, the other members of the
Selection Committee were influenced or biased in favour of the appellant only because the appellant happened to be closely related to a member
of the Selection Committee. No malafides were alleged against the other members of the Selection Committee nor was it alleged that they had, with a
view to push up the appellant in the merit accordingly, pushed down other candidates during the process of interview.
22. In the absence of the above material details, it would be difficult to hold that the selection of the appellant stood vitiated on account of likelihood
of bias. Not only this, in the judgment and order impugned, the marks allocated by the interview Committee were protected as regards the candidates
whose selection stood quashed.  In other words, the writ court by ordering the protection of the marks awarded in the interview in favour
of the candidates, in fact, discounted the possibility of any undue benefit having been conferred on those candidates whose selections were
ultimately quashed.Â
23. Considering the facts of the case and the law, we are of the view that the selection of the appellant cannot be said to be vitiated on account of
the fact that his father happened to be a part of the selection Committee especially in view of the fact that at the time when the appellant was
interviewed, he had recused himself. Even otherwise, since the writ court has ordered that the marks obtained by the candidates at the time ofÂ
interview be considered, while re-determining the merit in accordance with the detailed directions rendered in the judgment, it would only be fair that
marks obtained by the appellant in the said interview be also considered while re-determining the merit afresh. In case upon redetermination of the
merit, the appellant makes up the merit, he shall also be considered for appointment along with other eligibles. Since the challenge to the judgment
impugned was limited, we have confined ourselves to the issue raised before us and none other.
24. This appeal is accordingly allowed and is disposed of with a direction that the case of the appellant be also considered with others on the basis of
his overall merit and the marks obtained by him in the interview.
25. Connected application(s) also stands disposed of accordingly.
