G. Sarana Vs. University of Lucknow
& Ors  INSC 160 (28 July 1976)
SINGH, JASWANT SINGH, JASWANT RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION: 1976 AIR 2428 1977 SCR (1) 64 1976
SCC (3) 585
CITATOR INFO :
D 1990 SC1402 (26) RF 1991 SC 933 (10)
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.
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 challenging 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 secondly, that the impugned recommendation being an interlocutory
proceeding against which remedies were available, the writ petition was not
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  SCR
575=AIR 1957 S.C. 425, applied.
Linahan  138 F. 2nd 650; A. K. Karipak
v. Union of India  1 SCR 457=ALR 1970 SC 150; Nageshwar Rao v. State of
A.P.  1 SCR 580=AIR 1959 SC 1376; S. Parthararathi v. State of Andhra
Pradesh  1 SLR 427; Farooq Ahmad Bandey and Ors. v. Principal Regional
Engineering College & Anr.  I&K L.R. 427; Principles of Administrative
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 still open to the appellant and have
not been exhausted The writ petition or he present appeal before us is not
maintainable. [70 C-D]
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
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave is directed against the judgment
and order dated March 31, 1975, of Lucknow Bench of 65 the Allahabad High Court
dismissing the writ petition No. 405 of 1974 filed by the appellant challenging
the recommendation made by a Selection Committee of the Lucknow University
(hereinafter referred to as 'the University') for appointment of respondent No.
8 as Professor of Anthropology in the Faculty of Arts of the University.
The facts giving rise to this appeal are:
towards the end of the year 1973, the University put up an advertisement
inviting applications from candidates possessing the following qualifications
to fill up a vacant post of Professor of Anthropology :--"Essential: First
or high second class Master's degree and Doctorate in the subject concerned
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)
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 Anthropology
L.U. July, 1955April, 1962.
(2) Lecturer in Anthropol ogy Punjab
(3) Visiting Lecturer-Univ.
of California at Santa Barbara-July 1965-June
(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) 1946I
Deptt. of Anthropology, B. Com (L. U.) 1950I
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) SociologistNational Council of Appl. Economic Research, New Delhi March'
On February 27, 1974,, a Selection Committee
consisting of Shri A.K.K. Mustafi, Vice-Chancellor of the University, Dr. K.N.
Shukla, Dean, Faculty of Arts and Professor & Head of the Department of
Hindi of the University, and three experts viz., Dr. S.C. Dube, Dr. S.R.K.
Chopra and Dr. T.B.
Mayak, respondents 3, 4, 5, 6 and 7
respectively met to interview the candidates and to make their recommendation
to the Executive Council of the University. After interviewing the aforesaid
two candidates, the Selection Committee resolved to recommend respondent No. 8
herein for appointment to the aforesaid post of Professor of Anthropology.
On coming to know of the recommendation, the
appellant filed the aforesaid petition 'under Article 226 of the Constitution
challenging the recommendation mainly on the ground that two out of the
aforesaid three experts viz., Dr. S.C. Dube and Dr. S.R.K. Chopra were biased
against him and in favour of respondent No. 8. It was alleged by the appellant
that the respondent had close relations with the aforesaid two. experts as he
was instrumental in obtaining many remunerative assignments for them. It was.
further averred by the appellant that whenever Dr. Dube visited Lucknow, he
stayed with respondent No. 8. It was also averred by the appellant that Dr.
Chopra had strained relations with him on account of straight election contest
between him and the latter for the office of the President of Anthropology
Section of the Indian Science Congress for 19574. The appellant further averred
that in 1968 when he was serving in the Punjab University as a Lecturer in the
Department of Anthropology headed by Dr. Chopra, the latter stubbornly opposed
his application for leave to avail of the offer of fellowship from Harvard
University and stopped forwarding his salary bills to the Executive, Council
with the ulterior object of depriving him of the opportunity to attain higher
academic qualification and thereby better his future prospects with the result
that he was compelled to resign his job and surrender three months' salary in
lieu of notice to avail of the offer.
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 election contest with Dr. Chopra was also, in the
opinion of the High Court, of no significance, as such like contests were very
common and' it could not be said that Dr. Chopra had developed such a degree of
ill-will and hostility against the appellant for the latter's standing as a
candidate against him so as to render him incapable of acting impartially when
the task of selecting the best candidate was assigned to him and that it was
not possible to. presume that Dr. Dube and Dr. Chopra were in a position to
influence the decision of the entire Selection Committee by injection bias in
the minds of the other members. The High Court finally held that from the facts
relied upon by the appellant, bias could not be spelt out. In arriving at its
decision, the High Court relied upon the following observations made by Frank,
J. of the United States of America in re. Linahan.(1) "If, however,
"bias" and "partiality" be defined to mean the total
absence of preconceptions in the. Mind of the Judge, then no one has ever had
a. fair triaL,, and no one ever will. The human mind, even at infancy, is no
blank piece of paper.
We are born with predispositions and the
processes of education, formal and informal, create attitudes which proceed:
reasoning in particular instances and which, therefore, by definition, are
prejudices." The High Court also held that the appellant having submitted
to the jurisdiction of the Selection Committee, he could not be permitted to
turn round and denounce the constitution of the Committee.
Counsel for the parties have reiterated
before us the contentions raised on behalf of their clients before the High
Court. In addition, it has been contended by counsel for respondent No. 8 that
the impugned recommendation being in the nature of an interlocutory
proceeding,, neither the writ petition nor the appeal arising therefrom could
It is needless to emphasize that the
principles of natural justice which are meant to .prevent miscarriage of justice
are also applicable to domestic enquiries and administrative proceedings (See
A.K. Karipak v. Union of India (2). It cannot also be disputed that one of the
fundamental principles of natural justice is that in case of quasi judicial
proceedings, the authority empowered to decide the dispute (t) , 138F.
2nd 650 at 652.
(2)  2 S.C.C. 262 : 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
unconscious towards one side or the other in the dispute. (See Nageswara Rao
v.A.P. State Road Transport Corporation(1) and Gullapalli Nageshwar Rao v State
It would be advantageous at this stage to
refer to the following observations made by this Court in Manak Lal v. Prem
"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 whether 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 deciding 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 members do not
function as computers. Each member of the group or board is bound to influence
the others, 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 subject-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 subscribed to the Royal Society for the Prevention of Cruelty to Animals
was not thereby disabed (1)  Supp. 1 S.C.R. 319 :A.I.R. 1959 S.C.
(2) A.I.R. 1959 S.C. 1376:  1 S.C.R.
(3)  S.C.R. 575 :A.I.R. 1957 S.C. 425.
(4)  S.L.R. 427.
(5)  J & K.L.R. 427.
69 from trying a charge brought by that body
of cruelty to a horse. There must be some direct connection with the
litigation. If there is such prejudice, 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 announced 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 associate 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" although 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 justice." 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
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)  A.C. 586.
70 interview raise even his little finger
against the constitution. of the Selection Committee. He seems to have
voluntarily appeared before the Committee and taken a chance of having a
favourable recommendation from it. Having done so, it is not. now open to him
to turn round and question the constitution of the Committee. This view gains
strength from a decision of this Court in Manak Lal's case (Supra) where in
more or less similar circumstances, it was held that the failure of the
appellant to take the identical plea at the earlier stage of the proceedings
created an effective bar of waiver against him. The following observations made
therein are worth quoting:--"It seems dear that the appellant wanted to
take a chance to secure a favourable report from the tribunal which was
constituted and when he found that he was confronted with an unfavourable
report, he adopted the device of raising the present technical point." It
is also difficult to understand how the writ petition or for that matter the
present appeal before us is maintainable when the recommenlation of the
Selection Committee has still to be scrutinzed by the Excutive Council of the
University and either accepted or rejected by t and other remedies by way of
representation to. the Executive Council and an application for reference of
the matter under section 68 of the Uttar Pradesh Universities (Reenactment and
Amendment) Act, 1974, 0 the Chancellor are still open to the appellant and have
not been. exmusted.
For the foregoing reasons, we find ourselves
unable to allow the appeal. In the result, the appeal fails and is hereby
dismissed but in the circumstances of the case without any order as to costs.
M.R. Appeal dismissed.