Orissa High Court

Dr. Priyaranjan Maral & Ors vs State Of Odisha And Ors on 11 July, 2022

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                    W.P.(C) No.39640 of 2021
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).

     Dr. Priyaranjan Maral & Ors.                  ....         Petitioners
                                    -versus-
     State of Odisha and Ors.                      ....          Opp. Parties



     Advocates appeared in the case through Hybrid Mode:
     For Petitioners              :               Mr. Saswat Das, Adv.

                                    -versus-

     For Opp. Parties             :             Mr. P.K. Mohanty, Sr. Adv.
                                                                (for OPSC)
                                                Mr. M.K. Mishra, Sr. Adv.
                                                                 (for O.P.8)
                                                     Mr. D.P. Nanda, Adv.
                                                     Mr. A. Acharya, Adv.
                                                          (for O.Ps.9 to 11

                 CORAM:
                 DR. JUSTICE S.K. PANIGRAHI

                   DATE OF HEARING:-05.04.2022
                  DATE OF JUDGMENT:-11.07.2022

       Dr. S.K. Panigrahi, J.

1. The petitioners have filed this writ petition challenging the

entire process of selection conducted by the Odisha Public

Service Commission for recruitment to the post of Assistant

Professors in Psychology in different State Public

Universities under the administrative control of Higher

Education Department.

2. The petitioners who had offered their candidature pursuant

to an advertisement bearing no-08 0020-dated 08.02.2021

issued by the Odisha Public Service Commission (OPSC) for

recruitment to the post of Assistant Professor in different

State Public Universities of Odisha and were subsequently

shortlisted for interview, in the present writ application

seeks to challenge the notice bearing no-8881/PSC dated

06.12.2021 and letter/order bearing file no- HE-UE-POLICY-

0017 2020 51061/HE dated 14.12.2021 and the massive

irregularity committed by the opposite party No-2 in the

process of selection particularly by appointing two subject

experts in the interview Board who are the Ph.D. guide of

some candidates and also written some articles with some of

the selected candidates who participated in the interview

and selecting one candidate namely Monalika Rath who

admittedly did not qualify for the interview and her

candidature was rejected and reflected in the rejection list of

the candidates. The petitioner calls in question the said

action of the opposite parties as not only illegal and

arbitrary but also contrary to the principles of fair play in

the selection process inasmuch as the process is contrary to

the statutory provisions governing the field.

3. The grievance of the petitioners is that although they were

found eligible and called to appear in the interview but they

fell victim in the hands of authorities as well as the expert

bodies conducting the interview and selecting the

candidates through favouritism and nepotism as a result of

which the candidates who are less meritorious and belong

to other reserved category made an in road into the select

list. Therefore, the petitioners question the integrity and

propriety of the persons conducting such interview to make

a way for their research scholars to the select list.

I. Facts of the case

4. In order to fill up large number of posts of Assistant

Professor in different disciplines including the discipline of

Psychology, an advertisement bearing Advt. No- 08 of 2020-

21 dated 08.02.2021 was issued by the Odisha Public Service

Commission (OPSC in short)/ Opposite Party No-2 inviting

applications from the intending eligible candidates to offer

their candidature for the post lying vacant in different State

Public Universities.

5. Pursuant to the aforesaid advertisement large number of

candidates including the present petitioners who had

fulfilled all the eligibility criteria as well as the educational

qualifications prescribed in the advertisement conforming to

the UGC Regulations, 2018 offered their candidatures.

Thereafter, the OPSC verified the same and by virtue of the

notice bearing number 8124/PSC dated 09.11.2021 published

the PPSAN number of the candidates whose candidatures

were rejected on the ground noted in the column "reasons of

rejection".

6. So far as the opposite party No-8 is concerned (Monalika

Rath) is concerned, her PPSAN number 00093204" was

published amongst the list of rejected candidates and the

reason for such rejection was cited as "non-submission of

certificates from Registrar/Dean" regarding Ph.D. On the

very same day the OPSC by virtue of another notice bearing

No-8120/PSC dated 09.11.2021 published the PPSAN of 44

number of candidates who qualified for the interview for

recruitment to the post of Assistant Professor in Psychology.

7. Among the PPSAN of 44 number of candidates, the PPSAN

of the petitioners' name were reflected in the notice dated

09.11.2021 and they were called to appear in the interview

on the respective dates mentioned in the notice. Admittedly,

the PPSAN of the candidates namely Monalika Rath

(00093204) did not find place amongst the list of 44

candidates indicated in the notice bearing No- 8120 dated

09.11.2021. Pursuant to the notice dated 09.11.2021 issued by

the OPSC, the petitioners along with other eligible

candidates appeared in the interview on the respective

dates and had full conviction to have performed well in the

interview vis a vis all other candidates. However,

surprisingly a select list or the list of candidates

recommended by the Commission for recruitment for the

post of Assistant Professor Psychology was published by the

OPSC vide Notice No- 8881/PSC dated 06.12.2021 wherein

the name of Monalika Rath found place at serial number 4

and she was stated to have been selected under UR category

although her name found place amongst the list of rejected

candidates and although she was not called to the interview.

II. Submission of the petitioners

8. Learned Counsel for the petitioners submits that the sole

intent behind framing of the UGC Regulations, 2018 and the

amendment brought to the Odisha Universities Act by

virtue of the Odisha Universities Amended Act 2020 is to

lay down a conducive platform for recruitment of the

candidates through a robust process of selection by way of

a fair and transparent manner free from any discrimination,

bias, nepotism and favoritism. However, the above object

was vanquished when the candidate namely Monalika Rath

made an in road to the list of recommended candidates.

Admittedly, when her candidature was rejected by the

authorities by virtue of notice bearing No- 8124 dated

09.11.2021 and she was not called for the interview by virtue

of notice bearing No-8120 dated 09.11.2021. The above

incident prima facie heralds an avalanche of faith erosional

syndrome for the OPSC. It might be perceived to be a

package of hoax, but the circumstances reaffirmed

something else. It seems that the Odisha Public Service

Commissions has given a scope to some back door entry

method by recommending the names of the candidate who

could not qualify for the interview. The mala fide intention

of the Public Service Commission is apparent on the face of

record. Therefore, the entire selection process was not

conducted by the OPSC in a fair and transparent manner

and it has failed to insulate itself from the perception of free

from nepotism and favouritism. He further added that they

have utmost faith in the fair selection of process conducted

by the OPSC but in the present case, it seems to have been

done in capsiculated manner.

9. He further submits that all through the selection process

more particularly on the dates of interview except the

Chairman, the 3 subject experts namely i) Dr. B. Rangaiah,

Prof of Psychology, ii) Dr. Indramani Lal Singh, Prof of

Psychology, iii) Dr. P.A Baby Shari, Prof of Psychology,

University of Calicut and they interviewed all the qualified

candidates on the respective dates. In this context, it is

worthwhile to mention here that out of the 3 subject experts,

the subject expert namely Dr. B Rangaiah and Dr. Indramani

Lal Singh were the Ph.D. guides of some candidates who

appeared in the interview. Needless to mention that Dr B.

Rangaiah, one of the subject experts, was the Ph.D guide of

one selected candidate namely Sudarshan Behera having

PPSAN number 00078103 and Shri Behera has written four

research papers with Shri Rangaiah as co-author. Similarly,

another selected candidate namely Prabhakar Duari is the

Ph.D Scholar of Pondicherry University and he is the

student of Shri B. Rangaiah. The candidate namely Priyanka

Tiwari having PPSAN number 00093841 whose name finds

place at serial number 1 in the list of recommended

candidates completed her MA in Clinical Psychology from

Benaras Hindu University and during her academic session

she was the student of Prof. Dr. Indramani Lal Singh

(subject expert). She has also published a book along with

Dr. Indramani Lal Singh as co-author. The name of all the

three candidates have been reflected in the Notice No 8881.

This reflects that the interview process was rigged with bias

and favouritism which is not at all a generally approved

method of conducting selection.

10. Moreover, the law is well settled by this Court as well as

the Hon'ble Apex Court that there can be no doubt that if a

selection Committee is constituted for the purpose of

selecting candidates on merits and one of the members of

the Selection Committee is closely related to a candidate

appearing for the selection, it would not be enough for such

member merely to withdraw from participation in the

interview of the candidate related to him but he must

withdraw altogether from the entire selection process and

ask the authorities to nominate another person in his place

on the selections made would be vitiated on account of

reasonable likelihood of bias affecting the process of

selection. It is further well settled that when two or more

members of a Public Service Commission are holding a viva

voce examination, they are functioning not as individuals

but as the Public Service Commission. Of course, when a

close relative of a member of a Public Service Commission is

appearing for interview, such member must withdraw from

participation in the interview of that candidate and must not

take part in any discussion in regard to the merits of that

candidate and even the marks or credits given to that

candidate should not be disclosed to him.

11. He additionally submits that the law is well settled by this

Court as well as the Apex Court that it is one of the

fundamental principles of jurisprudence that no man can be

a Judge in his own cause and that if there is a reasonable

likelihood of bias it is "in accordance with natural justice

and common sense that the justice likely to be so biased, he

should be incapacitated from sitting". The question is not

whether the judge is actually biased or in fact decides

partially, but whether there is a real likelihood of bias. What

is objectionable in such a case is not that the decision is

actually tainted with bias but that the circumstances are

such in order to create a reasonable apprehension in the

mind of others that there is a likelihood of bias affecting the

decision.

12. Therefore, the notice bearing no- 8881/PSC dated 06.12.2021

and letter/order bearing file no- HE-UE-POLICY-0017-2020

51061/HE dated 14.12.2021 and the entire selection process,

much less the interview of recommended candidates is

arbitrary in nature and contrary to the principle of natural

justice and fair play.

III. Submissions on Behalf of the Opposite Parties

13. Learned counsel for the Opposite Parties submits that in this

context, case of the opposite party no.8 becomes pertinent to

elaborate. This candidate was awarded Ph.D degree in the

year 2013 and had her PhD course registered before 2009.

Thus, she was required to produce a certificate issued by

competent authority of the University certifying than she

fulfilled the requirements of having her Ph.D. degree as per

UGC Regulation, 2009. On the day of her document

verification (i.e. on 24.09.2021) she failed to produce the

above mentioned certificate. As such her Ph.D degree could

not be accepted in absence of the testimonials and hence

notified to be rejected.

14. As several such instances came to the notice of the

Commission that rejection was merely based on technical

grounds, the Commission took a conscious decision that a

candidate can produce the wanting testimonials before the

verification fixed for that particular subject. Accordingly,

notice dated 30.09.2021 was given to the candidates in this

regard in the OPSC website.

15. This candidate (O.P. No.8) produced the required certificate

from the competent authority of the University within the

specified date i.e. on 22.10.2021, last date fixed for

verification of Psychology discipline. She was declared

eligible by the verification board. With her academic score

following additional weightage of Ph.D she was shortlisted

for interview having secured a position within five times of

the advertised vacancies. Validation of her candidature has

been done with due diligence having regard to the scrutiny

process as enjoined by the UGC Regulations.

16. He further submits that Opposite Party No. 6 & Opposite

Party No. 7 both experts having academic association with

Opposite Party No.9 and Opposite Party No. 11 respectively

recused themselves in taking part in their interviews and

evaluation process (Opposite Party No 9 & Opposite Party

No 11) as has been duly noted by the Chairman and

academic representative of the Interview Board. Even for

the sake of argument, if an expert has some sort of academic

association with a candidate the former does not solely

decide the outcome of interview in favour of that candidate

because there are four other members including the

Chairperson whose integrity fairness and objectivity are to

be trusted.

Court's Analysis and Reasoning

17. The entire process of selection has given rise to some sort of

apprehension and substantive negative perceptions. In the

case of the opposite party No.8, which requires some

elaboration. This candidate was awarded Ph.D degree in the

year 2013 and had her PhD course registered before 2009.

Thus, she was required to produce a certificate issued by

competent authority of the University certifying that she

fulfilled the requirements of having her Ph.D. degree as per

UGC Regulation, 2009. On the day of her document

verification (i.e. on 24.09.2021) she failed to produce the

above mentioned certificate. As such her Ph.D degree could

not be accepted in absence of the testimonials and hence

notified to be rejected. This candidate (OP No.8) produced

the required certificate from the competent authority of the

University within the specified date i.e. on 22.10.2021, last

date fixed for verification of Psychology discipline is

completely demonstrates a case of extra favouritism. There

was no relaxation of time notice uploaded in the website for

the knowledge of the other candidates nor was there any

such quick communication mode established to intimate

candidates to allow such testimonials in question even by

extending some time concessions.

18. Further, the Opposite Party No.6 & Opposite Party No.7

both experts having academic association with Opposite

Party No.9 and Opposite Party No. 11 respectively though

demonstrated by the OPSC that they recused themselves in

taking part in their interviews and evaluation process. It

was further submitted that the recusal of Opposite Party

No.9 & Opposite Party No.11 has been duly noted by the

Chairman and academic representative of the Interview

Board. This Court had the occasion to verify such recusal

which is quite obscure which give rise to further suspicion.

While inspecting the file produced by the Counsel for the

OPSC , it was totally not clear as to what sort of recusal was

followed since the sheet showed the name and signature of

Opposite Party No.9 & Opposite Party No.11 in the

attendance sheet. The Counsel for the OPSC failed to

convince the court regarding the requirement of complete

recusal. Instead he pointed out that even for the sake of

argument, if an expert has some sort of academic association

with a candidate the former does not solely decide the

outcome of interview in favour of that candidate because

there are four other members including the Chairperson

whose integrity fairness and objectivity are to be trusted.

This Court has always reposed utmost faith on the

recruitment process of the OPSC but the present case

depicts an aberration.

19. Law dictates that no man can be a Judge in his own cause

and that if there is a reasonable likelihood of bias it is "in

accordance with natural justice and common sense that the

justice likely to be so biased should be incapacitated from

sitting". The question is not whether the judge is actually

biased or in fact decides partially, but whether there is a real

likelihood of bias. What is objectionable in such a case is not

that the decision is actually tainted with bias but that the

circumstances are such as to create a reasonable

apprehension in the mind of others that there is a likelihood

of bias affecting the decision. The basic principle underlying

this rule is that justice must not only be done but must also

appear to be done and this rule has received wide

recognition in several decisions of this Court.

20. Hon'ble Supreme Court explained 'likelihood of bias' in the

case of Ashok Kumar Yadav vs State Of Haryana And Ors.1

where it was held that:

"It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare state where the jurisdiction of administrative bodies in increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner. This was the basis on which the applicability of this rule was extended to the decision-making process of a selection committee constituted for selecting officers to the Indian Forests Service in A.K. Kraipak v. Union of India2 happened in this case was that one Naquisbund, the acting Chief Conservator of Forests, Jammu and Kashmir was a member of the Selection Board which had been set up to select officers to the Indian Forest Service from those serving in the Forest Department of Jammu and Kashmir. Naquisbund who was a member of the Selection Board was also one of the candidates for

1987 AIR 454

(1969) 2 SCC 262

selection to the Indian Forest Service. He did not sit on the Selection Board at the time when his name was considered for selection but he did sit on the Selection Board and participated in the deliberations when the names of his rival officers were considered for selection and took part in the deliberations of the Selection Board while preparing the list of the selected candidates in order of preference. This Court held that the presence of Naquishbund vitiated the selection on the ground that there was reasonable likelihood of bias affecting the process of selection."

21. The Supreme Court has time and again emphasized that it

was not necessary to establish bias but it was sufficient to

invalidate the selection process if it could be shown that

there was reasonable likelihood of bias. The likelihood of

bias may arise on account of proprietary interest or on

account of personal reasons, such as, hostility to one party

or persona! friendship or family relationship with the other.

Where reasonable likelihood of bias is alleged on the ground

of relationship, the question would always be as to how

close be the degree of relationship or in other words, is the

nearness of relationship so great as to give rise to reasonable

apprehension of bias on the part of the authority making the

selection.

22. Learned Counsel for the opposite parties have put forth the

argument of doctrine of necessity contending that it may

sometimes happen that no other member is available to take

the place of such member and the functioning of the Public

Service Commission may be affected. However, this

exception shall not be applicable in the present case as an

alternative as legally permissible. In Badrinath v.

Government of Tamil Nadu and Ors. J.T.3 of the decision

Hon'ble Apex Court has held that unless there is a statute or

statutory rule compelling the person to take a decision and

there is no legally permissible alternative to substitute the

adjudicator by another adjudicator, the doctrine of necessity

cannot be pressed into service. For ready reference

important paragraph of the decision is reproduced as under:

"83. It may be noticed that where a statute or a statutory rule constitutes a designated authority to take administrative or quasi-judicial decisions and where the person concerned is disqualified to take a decision on the principle of likelihood of bias, then the law (in certain circumstances explained below) makes an exception in the situation and the said person is entitled to take a decision notwithstanding his disqualification for otherwise no decision can he taken by anybody on the issue and public interest will suffer. But the position in the present case is that there is no statute or statutory rule compelling the Chief Secretary to be a member of the Screening Committee. If the Committee is constituted under an administrative order and a member is disqualified in a given situation vis-a-vis a particular candidate whose

2000 (Suppl. 1) SC 346

promotion is in question, there can be no difficulty in his 'recusing' himself and requesting another senior officer to be substituted in his place in the Committee, Alternatively, when there are three members in the Committee, the disqualified member could leave it to the other two - to take a decision. In case, however, they differ, then the authority, which constituted the Committee, could he requested to nominate a third member. These principles are well settled and we shall refer to them."

23. The question that confronted by this Court in the above

facts is whether the participation of Dr. B. Rangaiah and Dr.

Indramani Lal Singh in the selection process vitiates the

entire of the proceeding on the ground of bias. The doctrine

of bias is a unique judicial innovation consistent with the

principle that the justice delivery system must be rooted in

the confidence of the people and justice must not only be

done but also appear to have been done. Proof of actual bias

is difficult to come by. Hence the Courts have consistently

held that even the possibility of bias would suffice to nullify

an order passed or an action taken. In the present case, the

possibility of bias on the part of Dr. B. Rangaiah and Dr.

Indramani Lal Singh as against the other candidates in the

fray and leaning in favour of the candidates having a direct

nexus with them, loans large.

24. The Supreme Court in the case of PK Ghosh v. JG Rajput4

observed here as under-

"A basic postulate of the rule of law is that "justice should not only be done but it must also be seen to be done". If there be a basis which cannot be treated as unreasonable for a litigant to expect that his matter should not be heard by a particular Judge and there is no compelling necessity, such as the absence of an alternative, it is appropriate that the learned Judge should recuse himself from the Bench hearing that matter.

This step is required to be taken by the learned Judge not because he is likely to be influenced in any manner in doing justice in the cause, but because his hearing the matter is likely to give rise to a reasonable apprehension in the mind of the litigant that the mind of the learned Judge -- maybe subconsciously -- has been influenced by some extraneous factor in making the decision, particularly if it happens to be in favour of the opposite party.

Credibility in the functioning of the justice delivery system and the reasonable perception of the affected parties are relevant considerations to ensure the continuance of public confidence in the credibility and impartiality of the judiciary. This is necessary not only for doing justice but also for ensuring that justice is seen to be done."

25. Consequently, this Court finds merit in the plea of the

petitioner that there were reasonable grounds for an

1995 SCC (6) 744.

apprehension that the selection of candidates was vitiated

by bias. The Writ Petition is thus allowed. However, while

allowing this Writ Petition, this Court makes it clear that

nothing stated in this judgment is meant to cast any

reflection whatsoever on the eminence, credentials and

achievements of Opposite Party No.8 and other candidates.

This Court also held the OPSC and the experts invited for

the interview in high esteem and this may be treated as a

stand-alone aberration without any iota of erosion of this