All India Institute Of Medical ... vs Prof. Kaushal. K. Verma And Ors.
2015 Latest Caselaw 3582 Del

$~54-57

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                          DECIDED ON: 05.05.2015

+      W.P.(C) 4103/2014, C.M. Nos. 8224/2014 and 1447/2015
       ALL INDIA INSTITUTE OF MEDICAL SCIENCES..... Petitioner

                              versus

       PROF. KAUSHAL K. VERMA AND ORS                  ..... Respondent

W.P.(C) 4228/2014, C.M. Nos. 8491/2014, 8492/2014 and 1550/2015 RAJU SHARMA AND ORS ..... Petitioners

versus

UNION OF INDIA AND ORS ..... Respondents

W.P.(C) 4245/2014, C.M. Nos. 8533/2014, 8534/2014 and 1446/2015

SANJAY K. AGGRWAL AND ANR ..... Petitioners

versus

UNION OF INDIA AND ORS ..... Respondents

W.P.(C) 7166/2014, C.M. Nos. 3435/2015 and 3436/2015 PROF. S. RAJESHWARI & ORS. ..... Petitioners

versus

UNION OF INDIA & ORS. ..... Respondents

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 1 Presence: Mr. R.K. Gupta, Advocate for petitioner/AIIMS in Item no.54 and for respondent/AIIMS in item nos.55, 56 &57. Mr. Rajesh Gogna, Central Govt. Standing Counsel, for Respondent No.1 in item nos.55 and 56.

Mr. Jagdish. N., for Mr. S. Sunil, Advocate, for respondent in item nos. 54 to 57.

Mr. Ketan Paul and Mr. Prithu Garg, Advocates for petitioner in item no.57.

Mr. Arun Bhardwaj, CGSC with Ms. Neha Garg, Advocate for R-1/UOI in item no.57.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE R.K. GAUBA S. RAVINDRA BHAT, J

1. This order will dispose off the contentions urged in W.P.(C) 4228/2014 and W.P.(C) 4245/2014. The issue is whether this Bench should not hear the said Writ Petitions. The writ petitioners, in identically worded affidavits dated 11.03.2015, urge that the present Bench should not hear this petition and connected cases since the earlier Bench comprising of one of us (i.e. S. Ravindra Bhat, J) and Vipin Sanghi, J (who is not part of the Bench) had, "already prejudged and predetermined the issues involved while passing the order dated 03.12.2014." This request - to recuse the Bench comprising of one of the members of the said Bench (S. Ravindra Bhat, J - hereafter "the Presiding Judge") was first voiced on 04.02.2015. The Court had then granted time to the petitioners to file affidavits, which they subsequently did.

2. Firstly, the brief facts are that the writ petition and other connected petitions - (W.P.(C) 4103/2014 and the others) were preferred by the

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 2 petitioners - identically situated as the petitioners - (in W.P.(C) 4228/2014 and W.P.(C) 4245/2014) wherein they were aggrieved by the final order of the Central Administrative Tribunal (CAT) dated 04.04.2014 in O.A. No.2915/2010 (hereafter referred to as "the CAT's impugned order"). Whilst first issuing notice on 08.07.2014 in the writ petition, the then Bench of Gita Mittal, J and Deepa Sharma, J had directed maintenance of status quo. Subsequently on 16.10.2014, the matter was listed before the Bench of Bhat, J and Vipin Sanghi, J. They directed it to be listed on 03.12.2014. On the latter date, Rule was issued in all connected matters (W.P.(C) 4103/2014, 4228/2014, 4245/2014 & 7166/2014. All the petitioners aggrieved by the CAT's common order, had urged that initial interim order granted by the Court should be continued and that the Court should suspend operation of the CAT's impugned order since it had "serious ramifications on their careers". The Court's order dealt with the said applications, C.M. Nos. 16835, 16824, 8491 & 8553/2014. According to the petitioners, the CAT's order was erroneous because it assumed that the AIIMS Recruitment Rules, 1981 had statutory basis. It was also urged that the Assessment Promotion Scheme (APS) framed in 1992 was extended to enable promotion as Professors on assessment basis in 2000. The petitioners had been promoted as Professors. Consequently, they claimed to be lawfully entitled to seniority over later direct recruits. The petitioners also relied upon two decisions of the Supreme Court to say that under similar circumstances, officials promoted under similar schemes constituted temporary additions to the cadre and entitled to due seniority. The order - after discussing the CAT's impugned order - went on to discuss the submissions made in the following terms:

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 3 " 7. This Court has considered the submissions. To take up the last issue adjudicated right away, even if one assumes that both sets of Rules, i.e.1981 Rules and the APS to be mere executive instructions, two facts cannot be disputed. Before 2000, and until even after 2000, the manner in which the sanctioned posts of Professors could, and were filled through, was by direct recruitment. That is the only mode prescribed in the 1981 Rules, and there is no other norm. The 1981 Rules contained the policy of the AIIMS and was binding as executive instructions. The APS, which existed by virtue of its introduction in 1992, was not applicable for Professors; it was extended to them only in 2000.

8. Prima facie, the APS does not alter the 1981 Rules insofar as it prescribes that the method of recruitment to the sanctioned posts of Professor can be filled only by direct recruitment.

Clause (iii) of the APS states as follows:

"(iii) 50% of the eligible Additional Professors with seven years of regular service in the grade of Additional Professors may be promoted as Professor each year without linkage to the vacancies in the grade of Professors, on the following terms and conditions:-

(a) The presently sanctioned 110 posts of Professors as well as newly created additional posts of Professors and posts forming part of the sanctioned strength falling vacant due to retirement, resignation, death or any other reasons will continue to be filled by open selection.

(b) The post of Professor vacated by a candidate promoted from the grade of Additional Professor to that of Professor under the Assessment Promotion Scheme will be filled only at the level of Assistant Professor?

(emphasis supplied)"

9. Reliance placed upon Dr. Suman Aggarwal (supra), in the opinion of this Court, prima facie, is of no use to the

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 4 petitioners because the scheme in question considered by the Supreme Court expressly provided in Clause 11(1) that the position of Reader, or Professor to which "personal promotion" was made, had to be treated as a temporary addition to the cadre. Similarly, as far as Prof. S.A. Siddiqui (supra) is concerned, there was nothing in the scheme - contained in Statutes 27 and 28 - which fell for consideration by the Supreme Court, which limited the manner in which sanctioned posts were to be filled up. Like in the case of Dr. Suman Aggarwal (supra), there was a provision which expressly stated that seniority of a Professor, or Reader appointed under the Scheme in question, could be counted from the date of issue of the order, notwithstanding, that he/ she had been given retrospective promotion.

10. In the opinion of this Court, prima facie, the petitioners' arguments do not merit or warrant suspension of the impugned order of the Tribunal. The applications are, accordingly, rejected.

11. At this stage, learned counsel for AIIMS requested for some time to comply with the Tribunal's order. The AIIMS is granted time till 31.12.2014 to comply with the impugned order."

3. The petitioners were aggrieved by the above order and carried the matter and sought leave to appeal to the Supreme Court. The Supreme Court, while disposing of the Special Leave Petition has observed on 12.12.2014 as follows:

"Heard Mr. F.S. Nariman, learned senior counsel along with Mr. K.K. Mohan, Mr. Dinesh Dwivedi, learned senior counsel along with Mr. Ashish Mohan, for the petitioner, Mr. L. Nageshwar Rao, learned Additional Solicitor General for AIIMS, Respondent No.2 and had Mr. Hari Shankar, learned senior counsel for the private respondents.

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 5 Considering the nature of the controversy raised in the writ petition before the High Court, we are of the convinced opinion that the interim order dated 08.07.2014 passed in W.P.C.4103 of 2004 and other connected writ petitions shall remain in vogue. Needless to emphasize, when you say that the said order shall remain in vogue, that is to say, the said order shall revive and the order impugned, that is, the order dated 3.12.2004 shall not be given effect to.

As there has been a cavil with regard to the persons who have been recruited on the direct recruitment basis and the petitioners herein who have been promoted, we request the High Court to dispose of the writ petitions as expeditiously as possible, preferably within a period of four months. Needless to say, when there would be final adjudication in the matter anything that has happened in interregnum, shall not be taken into consideration.

The special leave petitions are accordingly disposed of. There shall be no order as to costs."

4. After the order of the Supreme Court, W.P.(C) 4228/2014 was listed before the Bench of G.S. Sistani, J and Sangita Dhingra Sehgal, J. At that stage, the office apparently had listed the other petitions before another Bench. In these circumstances, the said Bench directed all the petitions to be listed before the appropriate Bench subject to orders of Hon'ble the Chief Justice. Consequently, the matters were marked to the present Bench which otherwise, (according to roster allocation) has to decide all manner of tax appeals and petitions against orders of BIFR, AIFR, DRAT and the writ petitions concerning validity of statutes and laws with respect to these subjects. Accordingly, when the petitions were called for hearing on 04.02.2015, learned senior counsel appearing for the Petitioners in W.P.(C)

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 6 4228/2014 and W.P.(C) 4245/2014 urged that this Bench should desist from hearing the matters. The Court recorded this contention as follows:

"It is stated by Sh. Dinesh Dwivedi, learned senior counsel for the petitioners in W.P.(C) 4228/2014 and W.P.(C) 4245/2014 that this Bench should not hear the matter since one of us (HMJ S. Ravindra Bhat) has prejudged the case on account of the interim orders made. Learned senior counsel states that an affidavit to this effect would be filed in Court. He requests for some time.

List on 16.03.2015."

5. The connected petition, i.e. W.P.(C) 7166/2014 was subsequently listed on 16.03.2015; and was directed to be taken up on 13.04.2014. On the latter date, learned counsel suggested that the matter may be taken up some other day; accordingly, all the petitions were listed and submissions of the parties on the question which this order addresses itself to, heard on 29.04.2015.

6. Sh. Dwivedi, learned senior counsel urges firstly that the order of 03.12.2014 - to the extent it disturbed the existing status quo, amounted to a determination on the merits of the case. It was stated fairly by learned senior counsel that whilst the discussion on the submissions made by the parties with respect to the merits was called for to an extent, given that such arguments were addressed and the decisions also cited, the petitioners can yet legitimately seek recusal of this Bench on account of the Presiding Judge being a part of the Bench which made the order on 03.12.2014, as there is reasonable apprehension of his having prejudged the issue. It was submitted that had the Court not - on 03.12.2014, observed that the seniority list had to

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 7 be recast latest by 31.12.2014, such apprehension might not have arisen. Learned senior counsel relied upon the decisions of the Madhya Pradesh High Court in Union Carbide Corporation v. Union of India 1988 MPJR 2049. It was urged that where an order - even an interim measure, discloses prima facie predisposition of a particular judge to decide the lis before the Court in a certain manner, any party before him likely to be affected by such predisposition can be said to reasonably apprehend that justice would not be meted to him impartially. It was emphasized that in such cases, the request for recusal could not be a reflection on the integrity of the Bench or the judge, nor can it be understood as reflecting pecuniary or such like bias. Learned counsel submitted that where the conduct of the proceedings or the tenor of an order might justly give rise to reasonable appearance of likelihood of bias, in such event, the Bench or the concerned judge should dissociate or withdraw himself from proceeding. He relied upon the decision in Public Utilities Commission of the District of Columbia v. Pollak 1952 (343) US 451, cited in the Union Carbide Corporation case (supra). It was stated that it is the reasonable apprehension of likelihood of bias and not actual bias which has to be considered. In Metropolitan Properties Co. (FGC) Ltd. v. Lannon (1969) 1 QB 577, where the Court stated, "...The Court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. ...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, then he should not sit." It was submitted that this context was endorsed in Ranjit Thakur v. UOI AIR 1987 SC 2386 where it was held

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 8 that the judge does not look inside his own mind to test whether there is bias but looks at the mind of the party before him in so deciding.

7. Learned senior counsel submitted that the entire test of bias was revisited by the Supreme Court in its decision in Subrata Roy Sahara v. UOI and Ors. 2014 (8) SCC 470 where it reviewed all previous decisions in the context of allegations that the judges who authored the judgment ought to have recused from the Bench. Learned counsel emphasized that the Court did not decline the request of recusal because there was no lis pending before the Court which required decision on the basis of rival claims. It was emphasized that the merits of claims and counter claims were considered by the order dated 31.08.2012. In this context, learned counsel relied upon paras 129 and 130 of the said decision to say that unlike in the present instance, the merits of the dispute are writ large and have to be decided by this Court. He, therefore, analyzed that the last part of the order dated 03.12.2014 to the extent it indicated a time limit for the implementation of the CAT's impugned order - caused in the minds of the petitioners an apprehension that the merits would not be decided impartially and that this amounted to an apprehension of a reasonable likelihood of bias by one of us, i.e the Presiding Judge.

8. The request for recusal has not been endorsed by AIIMS. The other party before this Court, i.e. Petitioners in W.P.(C) 7166/2014 also do not subscribe to the submissions of the writ petitioners in W.P.(C) 4228/2014 and W.P.(C) 4245/2014. The respondents - who succeeded before the CAT in the impugned order have urged that the request for recusal is unreasonable and not warranted.

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 9

9. Sh. C. Harishankar, learned senior counsel on behalf of the respondents, urged that this Court should reject the recusal request. He submitted that accepting the recusal request would mean that in every case, the party unsuccessful in securing interim relief can potentially claim to have an apprehension that the Presiding Judge or the Judge concerned is biased. Every such apprehension cannot be granted unless the conduct of the proceeding or the tenor of the concerned order from which the request stems betrays a predilection by the judge to decide in a particular manner. In this context, learned counsel relied upon Chandra Kumar Chopra v. Union of India 2012 (6) SCC 369 where it was held that mere suspicion or apprehension is not good enough to entertain a plea of bias.

"It cannot be a facet of one's imagination. It must be in accord with the prudence of a reasonable man. It is not to be forgotten that in a democratic polity, justice in its conceptual eventuality and inherent quintessentiality forms the bedrock of good governance. In a democratic system that is governed by the rule of law, fairness of action, propriety, reasonability, institutional impeccability and non- biased justice delivery system constitute the pillars on which its survival remains in continuum...It is worth noting that despite the sanctity attached to the non-biased attitude of a member of a tribunal or a court and in spite of the principle that justice must not only be done but must seen to have been done, it is to be scrutinised on the basis of material brought on record whether someone makes wild, irrelevant and imaginary allegations to frustrate a trial or it is in consonance with the thinking of a reasonable man which can meet the test of real likelihood of bias. The principle cannot be attracted in vaccum."

10. Learned counsel next relied upon the decision of the Supreme Court in R.K. Anand v. Registrar, Delhi High Court 2009 (8) SCC 106 which had endorsed a Division Bench ruling of this Court which had inter alia stated

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 10 that the path of recusal often is convenient and soft option and that where unfounded and motivated allegations of bias are made with a view of forum hunting or Bench preference, succumbing to its pressure would amount to not adhering to judicial oath. Learned counsel also commended for consideration the decision of the U.S. Supreme Court in Liteky v. United States 510 US 540 (1993) where it was stated that opinions formed by the judge on the basis of comments made in the course of proceedings or in prior proceedings would not constitute a bias warranting recusal unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

11. The majority opinion of the Court held that application for recusal would be unwarranted on ground of bias if they are based on:

"expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration - even a stern and short-tempered judge's ordinary efforts at courtroom administration - remain immune."

Crucially, in Liteky (supra), it was held that certain inter-locutary rulings or orders made and considered in the course of the proceedings displayed bias which were inadequate grounds to establish bias.

"All of these grounds are inadequate under the principles we have described above: they consist of judicial rulings, routine trial administration efforts, and ordinary admonishments (whether or not legally supportable) to counsel and to witnesses. All occurred in the course of judicial proceedings, and neither (1) relied upon knowledge acquired outside such

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 11 proceedings nor (2) displayed deep-seated and unequivocal antagonism that would render fair judgment impossible."

12. Justice Kennedy, who wrote a separate concurring opinion dealt specifically with the following situation,

"To take a common example, litigants (like petitioners here) often seek disqualification based upon a judge's prior participation, in a judicial capacity, in some related litigation. Those allegations are meritless in most instances, and their prompt rejection is most important so the case can proceed. Judges, if faithful to their oath, approach every aspect of each case with a neutral and objective disposition. They understand their duty to render decisions upon a proper record and to disregard earlier judicial contacts with a case or party."

Justice Kennedy also held that,

"disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified."

13. In the light of these decisions, it was submitted that the petitioner's argument that the present Bench should not hear the writ petitions on the merits on account of reasonable likelihood of bias is devoid of merit and should be rejected.

Conclusions

14. This Court does not propose to re-visit the body of case-law which deal with various facets and nuances of bias of a decision maker, or a judge that taints proceedings or orders. There is a proliferation of judicial thinking on this score. This order will, however confine the discussion to questions of when can, in the course of judicial proceedings, or in the nature of a judicial

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 12 order, it be said that the judge has a pre-disposition to decide in a particular manner (pre-disposition of bias).

15. There is an elaborate discussion on what constitutes non-pecuniary bias in Subrata Roy Sahara (supra). The context there was the utterly unfounded charge of pre-disposition of the judges (of the Supreme Court) to decide in a particular manner. The context was, however, not what the applicants here urge it to be. That court had earlier, in a reported judgment, ruled on the merits of the dispute. The enforcement of those directions was the matter the court was seized with, which led the applicant to question the participation of the members of the Bench, whose conduct by way of expressing their opinions during the hearings, became the subject matter of the (unreasonable) request for recusal. Whilst the court no doubt stated that it had no adjudicatory role, nevertheless, it declined the application (for recusal). Pertinently for this case, the court had observed in its judgment, re- terating the observations of the court earlier in R.K. Anand (supra) that "...not hearing the matter, would constitute an act of breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill will." The submission made by the petitioner was that the judges should recuse themselves because they had strongly expressed their view about the merits. The petitioner had questioned a previous judgment of the Supreme Court, as contrary to law. The judges heard both the arguments on recusal, and the merits of the rival claims as to the final reliefs, and rejected both contentions. In the light of these facts - apparent from the face of the judgment itself, the Court is of opinion that the applicants' argument about the said judgment having been rendered in the absence of an adjudicatory role (of the court) is meritless.

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 13 This Court is also un-persuaded by the reliance on the Union Carbide Corporation (supra) decision, where apparently the District Judge laid himself open to the charge of a pre-disposition (to decide in a particular manner) by not addressing himself to the submission of the unsuccessful litigant, leading to the award of a huge ad-interim award of damages of `350 crores. The test of bias, stated by the Madhya Pradesh High Court (reasonable likelihood of bias) though is accurate. Mercifully, the applicant- petitioners here do not charge the Presiding Judge of not having dealt with the submissions - or having dealt with it too elaborately. What they complain about is the last part of the order of 03-12-2014, which indicated a time limit for the preparation of the seniority list in accord with the CAT's impugned order.

16. English law formulated the test of bias in R. v. Gough [1993] AC 646 as follows:

"if, in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. I am by no means persuaded that, in its original form, the real likelihood test required that any more rigorous criterion should be applied. Furthermore the test as so stated gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion, for that purpose.... Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him ..."

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 14 Locabail (Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. 2000 Q.B. 451 reiterated the test enunciated in Gough (supra). In Re Medicaments (No. 2) [2001] 1 WLR 700 the Court indicated the test of bias as "whether the fair-

minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".

20. South Africa also accepts this position. Its Constitutional Court decision in President of the Republic of South Africa v South African Rugby Football Union [1999 (4) S.A. 147] held as follows:

"objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or pre-dispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial."

17. These decisions- Locabail (Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. 2000 Q.B. 451); Reg. v. Gough [(1993) A.C. 646] and South African Rugby Football Union (supra) have all been applied by the Supreme

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 15 Court in Kumaon Mandal Vikas Nigam v Girija Shankar Pant (2000) 1 SCC 182.

18. There is no doubt that a judge or a Bench of judges should not only bring to bear an unbiased mind when they deal with the causes set down before them, but also appear to be unbiased. This latter requirement is as crucial to fair administration of justice as the former, because orders and utterances during the course of examination of the merits, can at times potentially harm the appearance of impartiality. And here lies the paradox: the concerned judge(s) are called upon in the first instance to rule on their apparent bias, which in the words of Justice Robin Jacob draws upon that judges' "ability to put yourself in the place of the other man or woman, whether they be litigant or witness or anyone else" (Knowledge of the World and the Act of Judging, Lord Justice Jacob)

19. In the United States, Section 144 and 455 of Title § 28 deal with judicial bias. Section 455 states that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding".

20. Judges are called upon to hand down orders, in the course of open court proceedings, on a variety of motions; the most common of these are applications for interim measures. The prevailing law in our country (and elsewhere) is that such orders have to necessarily consider the prima facie strength of the asserting litigant (be she or he the appellant or the claimant

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 16 before the court). Other considerations such as irretrievable hardship and balance of convenience necessarily enter the judicial matrix. Determinations of prima facie strengths invariably are based on what the court perceives to be facially apparent on the record; indeed a deeper scrutiny is avoidable for the simple reason that a full dress argument would not have been made occasioning the court to hear all submissions or consider all relevant materials. Would that mean that a clearly (though not conclusively) expressed view amounts to the court "pre-judging" the case beforehand? One thinks that such should not be the case. It is here that the reasonableness of the litigant's perception of the order (as displaying a preconceived mind, or predilection of the court to a particular view point) becomes crucial. Now, every view entertained by a litigant cannot be expected to be reasonable; there has to be some semblance of what she or he expects of the court in the circumstances- given that an application for interim relief would entail a discussion on merits (bereft of which the appellate court can justly castigate the court granting or denying such relief for opaqueness in the order itself). Therefore, it is expected that reasonably the applicant should brace herself or himself for the likelihood of failure - in the interim relief application. Over-sensitivity therefore, cannot be the basis of an application (an aspect emphasized in Wendy Ann El-Farargy v Nael Mahmould El Farargy [2007] EWCA Civ 1149 and more pithly phrased, in the words of Micheal Kirby, J in Johnson v Johnson (2000) 200 CLR 488, 509, that "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious"). What then is the proper approach? This court proposes to deal with a few decisions on this precise issue. "Pre-

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 17 determination" according to the decision in R. (Persimmmon Homes) v Vale of Glamorgan Council 2010 EWHC 535 (Admin) is:

"...the surrender by a decision maker of its judgment by having a closed mind and failing to apply it to the task. In a case of apparent bias, the decision maker may have in fact applied its mind quite properly to the matter but a reasonable observer would consider that there was a real danger of bias on its part. Bias is concerned with appearances whereas predetermination is concerned with what has in fact happened."

21. Dealing with this precise issue (of interlocutory or pre-merits review of a case) the work Judges on Trial: The Independence and Accountability of the English Judiciary By Shimon Shetreet and Sophie Turenne (Cambridge University Press, 2013) states that:

"Nevertheless, there are time in any trial and in any pre-trial review where a judge is entitled to express a preliminary view. There is nothing wrong in a judge indicating the way he may be thinking on a particular point, provided that this is a provisional view only and that it does not appear that this is a concluded view."

In Wendy Ann El-Farargy v Nael Mahmould El Farargy [2007] EWCA Civ 1149 the Court of Appeal dealt with a somewhat similar issue:

"This judge had already had to deal with this matter on many occasions for many days and, in the light of the husband's appalling forensic behaviour, no observer sitting at the back of his court could have been surprised that he had formed a "prima facie" view nor even that it was "a near conviction". A fair-minded observer would know, however, that judges are trained to have an open mind and that judges frequently do change their minds during the course of any hearing. The business of this court would not be done if we were to recuse ourselves for entering the court having formed a preliminary view of the prospects of success of the appeal before us. Singer J. did

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 18 express himself in strong terms and he would have been wiser to have kept his thoughts to himself. But there are times in any trial and in any pre-trial review where a judge is entitled to express a preliminary view and I do not see that Singer J. has over-stepped the mark in the particular circumstances of this case. The husband has behaved disgracefully yet he, noticeably, has not joined in the application for the judge to recuse himself. The Sheikh, who allies himself with the husband, cannot complain too vociferously if some of the judge's wholly justifiable ire rubs off on him."

Mere strong expression about the likely outcome of a case then is insufficient to successfully allege bias. What amounts to overstepping the line is best exemplified in the decision in Ezias v North Glamorgan NHS Trust 2007 EWCA Civ 330, where the chairman of the Employment Tribunal, sitting singly, in a pre-trial hearing expressed that the claimant not only had "little prospect of success" during the hearing and went on to say that "I would go further and say I have no doubt that it is bound to fail." Such strongly expressed opinion was held to constitute a pre-disposition of the judge to hold a particular view, which warranted a justified request for recusal. The decision of our Supreme Court in Chandra Kumar Chopra (supra) underlines that "Mere suspicion or apprehension is not good enough to entertain a plea of bias." The allegation of bias has to be "scrutinised on the basis of material brought on record whether someone makes wild, irrelevant and imaginary allegations to frustrate a trial or it is in consonance with the thinking of a reasonable man which can meet the test of real likelihood of bias"

22. The true test of bias then, as recognized by Indian courts is much the same as in UK and South Africa, i.e "real likelihood, in the sense of a real possibility" (of a judge having through his conduct, or his orders shown reasonable likelihood of deciding in a particular manner - of having a pre-

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 19 disposition in the case). This test is not, like in the US based on application of a very high threshold of the judge having "displayed deep-seated and unequivocal antagonism that would render fair judgment impossible." (Liteky (supra)). Also, the test pre-supposes that the judge has to consider if a fair minded and reasonable observer can conclude that the conduct or order displays pre-disposition of a kind that endangers impartial justice delivery by him. The judge is not required to "look within" but rather transpose herself/himself into the shoes of the reasonable and fair minded by-stander.

23. Returning to the present case, this Court notices that firstly all petitioners do not support the request for recusal. While this circumstance is not conclusive by itself, it is important, so far as perception of what is a reasonable apprehension is concerned. No doubt, the All India Institute of Medical Sciences cannot have any grievance about any Bench which hears the cases, because it does not espouse any personal cause, but rather the interpretation of its policies. However, the petitioners in W.P.(C) 7166/2014 have a grievance with respect to the CAT's impugned order; they have not joined in the request for recusal. Therefore, in these proceeding, all the petitioners do not share the perception of the Presiding Judge having pre- judged the merits of the case.

24. The second and more crucial aspect is that the petitioners (quite rightly) do not highlight the discussion in the order of 03-12-2014 of the merits of the submission; they accept such content or discussion as inevitable, since the arguments with the authorities was made. What they harp upon is the latter part of the order, which gives a time limit for preparation of the seniority list. The said portion of the order is extracted

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 20 below:

"10. In the opinion of this Court, prima facie, the petitioners' arguments do not merit or warrant suspension of the impugned order of the Tribunal. The applications are, accordingly, rejected.

11. At this stage, learned counsel for AIIMS requested for some time to comply with the Tribunal's order. The AIIMS is granted time till 31.12.2014 to comply with the impugned order."

The petitioners say that had Paragraph 11 not been phrased as it was, there would not have been any compulsion for the AIIMS to comply with the CAT's impugned result, which has serious consequences inasmuch as they would face serious prejudice by way of loss of seniority, even while the merits of their petitions are to be decided. As observed earlier, firstly every litigant who seeks interlocutory relief of any kind, is reasonably aware of the possibilities of both outcomes; where the court in question is not a final court, but one of first instance or an intervening appellate court- it has to record its reasons- howsoever tentative and prima facie. Now, the rejection of a request to stay or suspend the CAT's impugned order would mean that the same would have to be complied with. That was the natural corollary. The Court, however did not direct compliance; it recorded- as is apparent from the order itself, the AIIMS's request for extension of time, and dealt with it. No doubt, that had consequences, as rightly pointed out by the petitioners, yet the consequence was within their reasonable contemplation. Given such circumstances, this singular feature cannot in the opinion of the court, be said to constitute a reasonable likelihood for the apprehension that

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 21 the Presiding Judge had pre-judged the merits on 03-12-2014 or had expressed such strong views as to make it difficult to secure justice. Lastly, the petitioners' apprehensions are also unfounded because they ignore that the present Bench comprises of a member (Gauba, J) who was not a member of the Bench which made the order on 03-12-2014. The arguments pre-suppose that Gauba, J would have no say in the merits during the final hearing of the petitions and that the Presiding Judge would invariably prevail. This assumption is unfounded and undermines the mechanism of decision making by a Division Bench where judges have an equal say in the judgment of the court.

25. Before ending this unusually prolix order, which can run into the danger of self-vindication, the Court observes that requests for recusal are to be based on reasonable apprehensions; they cannot be speculative or fanciful suppositions. An observation that needs to be emphasized is that recusals generally, and especially those fuelled by unjustified demands can be burdensome on the judges who are eventually called upon to decide the cause. Whenever made, the concerned court or judge so charged is bound to take it seriously, as it undermines what is the bedrock of justice delivery- impartiality. To borrow the words of Beverely Mclachlin (Chief Justice of Canada) ("Judging in a Democratic State"):

"...judges are not living Oracles. They are human beings, trained in the law, who struggle to understand the situations before them and to resolve them in accordance with the law and their consciences.. And judges must learn to live with being wrong. As human beings, judges learn early in their career to deal with criticism. Every new judge dons the judicial robes resolved never to make a mistake. And every new judge fails. Decisions must sometimes be made without the opportunity for full reflection. The law may not be entirely clear. The

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 22 truth may be elusive. In the result, even the best judges inevitably are found to have erred. The errors are publicly identified by appellate judges and laid plain for all to see. The fact that appellate judges themselves have been known to err may provide only limited consolation."

If one may add, the greater the experience of the judge, the more acutely she or he is aware of her or his fallibility and the pitfalls of acting on impulse or prejudice. The journey, which begins with certainty, later leads to a path of many grey areas. Given that language itself is an imperfect medium, words are but vessels giving shape to ideas and that no human being is perfect, no judge can claim to be perfect in communicating ideas. The emphasis on a phrase here or an expression there, bereft of anything more, would not ipso facto disclose a predilection, or pre-disposition to decide in a particular manner.

26. For the foregoing reasons, the Court holds as groundless and misconceived the request by writ petitioners in WP 4228/2014 and WP 4245/2014 that the present Bench, of which S. Ravindra Bhat, J is a member, should desist from hearing those Petitions and other connected matters.

27. All the writ petitions are directed to be listed for hearing on 19th May, 2015.

S. RAVINDRA BHAT (JUDGE)

R.K. GAUBA, J.

1. I have seen the draft of the order, prepared by my brother S. Ravindra Bhat, J., on the request of recusal by the Division Bench headed by him. I

W.P.(C)4103, 4228, 4245 & 7166/2014 Page 23 fully concur with the conclusions reached by him and the reasoning leading thereto. I would only add that the request for recusal by the Bench ignores the fact that it comprises of two Judges each of whom have an independent mind to apply. The presence of another Judge with equal say strengthens the rigor of the judicial scrutiny and cannot be undermined.

2. Even otherwise, in my opinion, the last sentence in para 11 of the order dated 03.12.2014 which is quoted as the cause of apprehension was not couched or intended to be a direction by the court. Instead of being read as a mandate detrimental to the interest of the respondents who are seeking recusal, it can also possibly be read in a positive manner inasmuch as the grant of time to AIIMS to comply with the order of CAT inured to the advantage of respondents only inasmuch as it resulted in virtual extension of the status quo order that had been accorded earlier.

3. Formation of tentative opinion at the stage of considering interim relief, particularly when supported by a reasoned order, ought not be construed as pre-disposition of mind. The apprehensions expressed are, thus, unfounded and the request for recusal deserves to be declined.

4. The writ petitions shall come up for hearing on the date indicated in the main order.

                                                        R.K. GAUBA
                                                         (JUDGE)

MAY 05, 2015




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