Summary
A three-judge bench resolved a split verdict over the 1998 selection of Shiksha Karmis that the Collector had cancelled on grounds of bias, without hearing or impleading the selectees. It held that no reasonable likelihood of bias was shown because the related committee members had recused under a resolution and awarded no marks, and that cancelling the appointments without notice grossly violated audi alteram partem, a defect the revisional stage could not cure. It upheld Justice Vishwanathan's opinion and allowed the appeals without remand.
Issues
- Whether the selection was vitiated by the rule against bias because relatives of selection committee members were among the selectees.
- Whether a claim of violation of audi alteram partem requires demonstration of prejudice.
- Whether a breach of audi alteram partem at the original stage before the Collector can be cured at the revisional stage.
Provisions considered
- Section 40(1)(c) and Explanation, Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993The authorities relied on this provision, which treats an office-bearer's use of position to secure employment for a relative as misconduct, but they never considered its exhaustive definition of 'relative', which some selectees fell outside; this weakened the bias finding. The Court also relied on the proviso requiring an opportunity to show cause to hold that the statute itself contemplated a hearing. (¶¶ 22, 23, 28, 53, 54)
- Section 100, Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993Noted as the penalty provision on members or office-bearers acquiring an interest in a Panchayat contract or employment, which the Collector had relied on in cancelling the selection. (¶¶ 4, 23)
- Rule 9, Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995Rule 9 requires the appellate or revisional authority to give the parties an opportunity of hearing before confirming, varying or setting aside an order. Because the hearing requirement is built into the statutory procedure, the question of prejudice could not be raised, and the Collector should at least have issued notice to the 14 identified selectees. (¶¶ 50, 51)
- Rule 5(b), Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995Because revision lies only on points of law and not on facts, the Commissioner's revision could not cure the absence of a hearing on disputed facts before the Collector. (¶¶ 65, 66)
- Rule 5(8), (9) and Schedule II, Madhya Pradesh Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997The rules prescribe the selection committee's composition, including all members of the Standing Committee. This statutory composition attracted the doctrine of necessity, and recusal was the appropriate safeguard where a member's relative was a candidate. (¶¶ 19, 20, 21, 30)
Held
- Indian courts apply the 'real likelihood' or reasonable-apprehension test for bias, judged from the standpoint of a fair-minded person. Where the related members recused under the Panchayat's unanimous resolution, did not take part in the interviews and awarded no marks, no reasonable likelihood of bias could be inferred; this was mere suspicion without foundation (following Javid Rasool Bhat, Ashok Kumar Yadav and Jaswant Singh Nerwal, and distinguishing A.K. Kraipak). (¶¶ 27, 28, 29, 32, 33, 34, 35)
- The rule against bias yields to the doctrine of necessity. Where a statute fixes the composition of the selection committee, and in a village-level selection where people inevitably know each other, recusal is an acceptable mechanism to rule out bias (Charanjit Singh v. Harinder Sharma). (¶¶ 30, 31)
- The non-observance of natural justice is itself prejudice, and proof of separate prejudice is unnecessary (S.L. Kapoor). The prejudice exception applies only where, on admitted or indisputable facts, only one conclusion is possible; it is an exception and cannot become the norm. (¶¶ 42, 43, 45, 46, 47, 48, 54)
- S.K. Sharma, which distinguishes 'no opportunity' from 'no adequate opportunity', did not help the respondents because this was a case of no notice at all. The selectees were neither impleaded nor heard on disputed facts, including the effect of the recusal resolution. That was a gross violation of audi alteram partem, made worse by the statutory requirement of a hearing. (¶¶ 44, 49, 51, 52, 54)
- Where an unsuccessful candidate challenges a selection and specific allegations are made against identifiable selectees, those selectees must be impleaded and given notice, particularly where tainted and untainted candidates can be separated. (¶¶ 49, 51)
- As a general rule (Leary; L.K. Ratna), a failure of natural justice at the initial stage cannot be cured by a hearing at the appellate stage; the Calvin v Carr exception applies only in exceptional cases. Even where the appellate body has full jurisdiction, courts may send the matter back to the original stage. Here revision lay only on law, and the revisional order merely repeated the Collector's, so the ex parte cancellation was vitiated. (¶¶ 57, 58, 59, 60, 63, 64, 65, 66, 67)
- An allegation of bias can be established only on facts found after the affected persons have been heard. (¶ 69)
Result
Appeals allowed. Justice K.V. Vishwanathan's opinion was upheld and the High Court Division Bench judgment set aside, so the appellants' selection stands. No remand was ordered, because the appellants had served for over 25 years under interim orders and one had retired. Parties to bear their own costs.