2026 INSC 101 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION(CIVIL) NO(S). 1180 OF 2025

CAPTAIN PRAMOD

KUMAR BAJAJ ….PETITIONER(S)

VERSUS

UNION OF INDIA AND ANR. ….RESPONDENT(S)

J U D G M E N T

Mehta, J.

1. Heard.

2. The present case discloses a sordid tale of

targeted departmental vendetta, full of mala fide

actions and protracted persecution that has

compelled the petitioner to invoke the extraordinary

jurisdiction of this Court under Article 32 of the

Constitution of India.

3. The petitioner before us is a former member of

the Armed Forces who was released from service on

account of physical disability suffered during the

course of the Army operations.

2

4. Pursuant to his release, the petitioner appeared

and succeeded in the Civil Services Examination. He

was appointed to the Indian Revenue Service against

an unreserved category post way back in the year

1990. Having earned an unblemished service record,

including promotion to the high position of

Commissioner of Income Tax in the year 2012, the

petitioner applied for the post of Member

(Accountant), ITAT, and was interviewed by an SCSC

headed by an Hon’ble sitting Judge of this Court. The

Committee evaluated the petitioner and ranked him

first on the all-India merit list. It appears that this

success of the petitioner did not go down well with

the Officers of the respondents. The chain of events

which transpired as a sequel have led to the filing of

the present writ petition under Article 32 of the

Constitution of India.

5. The present writ petition has been instituted by

the petitioner, inter alia, seeking the following reliefs:-

i. “Issue a writ of certiorari, mandamus or

any other appropriate writ, order, or

direction or declaration for re-constitution

of the Search Cum Selection Committee to

consider the case of Petitioner within four

weeks in terms of orders dated 15.11.2017

3

and 09.09.2020 in SLP(C) No.22596/2017

and M.A. 2557/2019, so that appointing

authority can take a decision within two

weeks thereafter,

ii. Issue a writ of certiorari, mandamus or

any other appropriate writ, order, or

direction or declaration after summoning

the complete file, so that justice is done to

the Petitioner, who has been

recommended 11 years ago by the SCSC

(2013 Notification) and faced 3 SCSCs

subsequently, in accordance with the

judgment of this Hon'ble Court dated

15.11.2017 in S.L.P. Civil No.

22596/2017”

BACKGROUND

6. The present matter has a chequered history as

it has traversed multiple rounds of litigation, which

renders it necessary to set out the factual

background in some detail. Accordingly, the facts

relevant and necessary for the disposal of the present

writ petition are noted hereinbelow.

A. Service Background and Initial Selection

Process

7. The petitioner was inducted as a Permanent

Commissioned Officer in the Indian Army in the year

1980. During the course of Army operations, he

4

suffered a physical disability and was, consequently,

demobilised and released from service on account of

disability attributable to active military operations.

Thereafter, he qualified the Civil Services

Examination in the year 1989 and was appointed to

the Indian Revenue Service in the general category,

being allocated to the 1990 batch. In the course of his

service in the Department of Income Tax, he held

various posts and was promoted to higher ranks,

including promotion to the post of Commissioner on

12

th January, 2012, while maintaining an

unblemished service record throughout his tenure.

8. In the year 2014, the petitioner applied for

appointment to the post of Member (Accountant),

Income Tax Appellate Tribunal

1, and was called for

an interview before the Search -cum-Selection

Committee

2 chaired by Hon’ble Shri Justice T.S.

Thakur (as he then was), along with the Additional

Solicitor General, the Law Secretary , and the

President of the ITAT as its members.

9. Upon evaluation of all candidates, the SCSC

placed the petitioner at All India Rank One. However,

1

For short, ‘ITAT’.

2

For short,’SCSC’.

5

notwithstanding the said recommendation, the

respondents did not issue a formal letter of

appointment on the premise that certain adverse

Intelligence Bureau

3 inputs were available against

the petitioner, which allegedly emanated from

litigation between the petitioner and his estranged

spouse.

10. In the year 2016, the petitioner was also

empaneled by the Appointments Committee of the

Cabinet

4 for appointment as Joint Secretary to the

Government of India.

B. Litigation Arising from the Withholding of

Appointment

11. Aggrieved by the non-issuance of a formal

appointment letter despite being placed at the top of

the merit list by the SCSC, the petitioner approached

the Central Administrative Tribunal

5, Lucknow

Bench, by filing Original Application No. 95 of 2016,

which came to be allowed vide judgment dated 10

th

February, 2017, directing the respondents to place

the alleged IB report before the SCSC within a period

3

For short, ‘IB’.

4

For short, ‘ACC’.

5

Hereinafter, referred to as the ‘Tribunal’.

6

of one month, for it to take a final view on the

petitioner’s claim for appointment to the subject post.

12. Pursuant thereto, the re-constituted SCSC

convened its meeting and, vide its opinion dated 26

th

April, 2018, rejected the fetters created by the

respondents and reiterated the merit position of the

petitioner for appointment as Member (Accountant),

ITAT.

13. Meanwhile, the respondents assailed the order

dated 10

th February, 2017, passed by the Tribunal by

filing Writ Petition No.8648 of 2017 before the High

Court of Judicature at Allahabad, Lucknow Bench

6.

The High Court, vide order dated 30

th May, 2017,

dismissed the writ petition and directed the

respondents to act in accordance with the directions

issued by the Tribunal and to conclude the process

of reconsideration of the petitioner’s candidature

within a period of three months.

14. Aggrieved by the order dated 30

th May, 2017,

passed by the High Court, the respondents

approached this Court by filing SLP (Civil) No. 22596

of 2017. The said Special Leave Petition came to be

6

Hereinafter, referred to as the ‘High Court’.

7

dismissed vide order dated 15

th November, 2017,

with a direction to comply with the order passed by

the High Court.

C. Vigilance, Disciplinary Proceedings, and

Compulsory Retirement

15. On 29

th November, 2017, a vigilance inspection

was conducted in the office of the petitioner.

Consequent thereto, the respondents issued a show

cause notice dated 31

st January, 2018 to the

petitioner. Even prior thereto, on 21

st January, 2018,

the vigilance clearance earlier granted in favour of the

petitioner was withheld. The petitioner assailed both

the aforesaid actions by filing separate OAs before the

Tribunal. The Tribunal, by an interim order, observed

that the issuance of the show cause notice shall not

impede or influence the petitioner’s consideration for

appointment to the post of Member (Accountant),

ITAT. By a subsequent interim order dated 4

th May,

2018, the Tribunal further provided that withholding

of vigilance clearance would also not stand in the way

of such appointment. A second SLP preferred by the

respondents against the interim relief granted by the

Tribunal, as affirmed by the High Court in W rit

Petition (Civil) Nos. 22179-22187 of 2018 vide order

8

dated 6

th August, 2018, came to be dismissed by this

Court on 29

th March, 2019.

16. In the interregnum, on 11

th April, 2018, the

petitioner was placed in the “Agreed List”, being a list

of Gazetted Officers of suspected integrity maintained

by the Department. Aggrieved by the action of the

respondents in placing his name in the “Agreed List”,

the petitioner approached the Tribunal for the third

time, wherein an interim order was granted in his

favour. Ultimately, by a common judgment dated 6

th

March, 2019, the Tribunal allowed O.A. No. 137 of

2018 and O.A. No. 279 of 2018, quashing the

inclusion of the petitioner’s name in the “Agreed List”

along with the consequential proceedings, so also the

decision of the respondents denying him vigilance

clearance. The Tribunal further directed the

respondents to forward the name of the petitioner to

the competent authority for selection and

appointment to the post of Member (Accountant),

ITAT. The respondents remained adamant and did

not comply with the said judgment and again

preferred a writ petition before the High Court.

Admittedly, no interim order staying the operation of

9

the judgment dated 6

th March, 2019 was granted by

the High Court.

17. Aggrieved by the continued non-compliance of

the order dated 30

th May, 2017, passed by the High

Court in his favour, as well as the directions issued

by the Tribunal vide its common judgment dated 6

th

March, 2019, in O.A. No. 137 of 2018 and O.A. No.

279 of 2018, the petitioner initiated contempt

proceedings, being Contempt Petition No. 2681 of

2017 before the High Court and Contempt Case Nos.

15 of 2019 and 26 of 2019 before the Tribunal,

respectively. Despite the judicial mandate that the

petitioner’s name be forwarded to the appointing

authority within a period of two weeks, the

respondents failed to comply, and their application

seeking extension of time was rejected by the

Tribunal vide order dated 8

th April, 2019. The High

Court vide order dated 13

th August, 2019, permitted

impleadment of the then Chairman of the Central

Board of Direct Taxes

7 and issued notice to show

cause as to why such officer should not be proceeded

against for willful disobedience of the order dated 30

th

7

For short, ’CBDT’.

10

May, 2017. Similar notices were issued by the

Tribunal for non-compliance of the orders dated 30

th

May, 2017, and 6

th March, 2019.

18. In the proceedings before the High Court, the

respondents, with a clear intention of avoiding

compliance, continued to seek adjournments on the

premise that steps were being taken to forward the

petitioner’s name to the ACC for processing his

appointment as Member (Accountant), ITAT.

Ultimately, on 31

st May, 2019, the respondents were

granted a final opportunity to effect compliance and,

at their request, the matter was adjourned to 9

th July,

2019.

19. In the interregnum, the respondents issued a

charge memorandum dated 17

th June, 2019, and

placed the petitioner under suspension on 1

st July,

2019.

20. In July, 2019, a Departmental Promotion

Committee convened by the Union Public Service

Commission considered the case of the petitioner for

promotion to the post of Principal Commissioner.

However, the decision in respect of the petitioner was

kept in a sealed cover on account of the pending

disciplinary proceedings. The petitioner had, in the

11

meantime, approached the High Court by filing a writ

petition challenging the charge memorandum,

wherein interim protection was granted in his favour.

21. While the said proceedings were still pending,

the respondents, by resorting to Rule 56(j) of the

Fundamental Rules, proceeded to compulsorily retire

the petitioner vide order dated 27

th September, 2019,

barely three months prior to his superannuation,

which was due in January, 2020. Thereafter, the list

of promotions to the post of Principal Commissioner

was published on 11

th November, 2019, by which

time the petitioner stood excluded from

consideration.

22. As a consequence of the issuance of the charge

memorandum and pursuant to the action of

compulsory retirement initiated by the CBDT, the

Department of Personnel and Training

8 in a façade

showing compliance of the Tribunal’s order dated 6

th

March, 2019, issued an Office Memorandum dated

9

th September, 2019, directing that the petitioner’s

file for appointment as Member (Accountant), ITAT be

placed afresh before the SCSC.

8

For short, ‘DoPT’.

12

23. An office memorandum was issued on 9

th

September, 2019, directing Respondent No. 2

(Secretary, Ministry of Law and Justice) to place the

matter relating to the issuance of the charge

memorandum and the action under Rule 56(j) before

the SCSC afresh, in terms of the directions of the

appointing authority. This Court, vide order dated 9

th

January, 2020 passed in Miscellaneous Application

No.2557 of 2019 in Special Leave Petition (Civil)

No.22596 of 2017, observed that the respondents

would be at liberty to consider all relevant material,

including material that had emerged after 29

th

August, 2014, insofar as the same bore upon the

suitability of the petitioner for appointment as

Member (Accountant), ITAT.

24. Further directions were issued granting liberty

to the petitioner to challenge the aforesaid actions of

the respondents in accordance with law.

25. Pursuant to the notice issued by the

respondents, the petitioner again appeared before the

third SCSC. The Committee, however, deferred

consideration of the petitioner’s candidature until

judicial scrutiny of the two pending actions, namely

the charge memorandum and the order of

13

compulsory retirement under Rule 56(j), was

concluded.

D. Judicial Scrutiny of Disciplinary Action and

Consequential Proceedings

26. The petitioner challenged the order of

compulsory retirement dated 27

th September, 2019,

as also the subsequent order dated 2

nd January,

2020, passed by the Representation Committee

declining to interfere with the said action, by

approaching the Central Administrative Tribunal,

Principal Bench, New Delhi by filing an Original

Application, being OA No.703 of 2020 . The said

Original Application came to be dismissed vide

judgment dated 9

th December, 2020, which was

upheld by the High Court vide judgment dated 31

st

May, 2022.

27. Aggrieved by the judgment dated 31

st May, 2022

passed by the High Court, affirming the judgment

dated 9

th December, 2020 rendered by the CAT, the

petitioner approached this Court by filing Civil

Appeal No. 6161 of 2022. The said appeal came to be

allowed by this Court vide judgment dated 3

rd March,

2023, with scathing findings and observations on the

14

conduct of the respondents which are extracted

hereinbelow: -

“36. In the teeth of the series of orders passed by the

Tribunal and the High Court in favour of the appellant,

the respondents elected to withhold his vigilance

clearance, thereby compelling the appellant to file

contempt petitions against the concerned officers for

non-compliance of the orders passed. Both, the High

Court as well as the Tribunal, issued notices for wilful

disobedience of the orders passed. In the proceedings

before the High Court, on the one hand, the

respondents kept seeking adjournments on the ground

that steps were being taken to forward the appellant’s

name to the ACC for being processed for his

appointment as Member, ITAT, till as late as on 31st

May 2019 on which date they were granted one last

opportunity for making compliances and at their

request, the matter was adjourned to 9th July 2019

and on the other hand, the respondents slapped the

appellant with a Charge Memorandum dated 17th

June 2019 and suspended him on 1st July, 2019.

37. Having regard to the fact that the respondents did

not take the disciplinary proceedings initiated against

the appellant to its logical conclusion and instead

issued an order compulsorily retiring him, this Court

does not deem it expedient to delve into the allegations

levelled in the said Charge Memorandum; all the same,

we have cursorily gone through the Charge

Memorandum that mentions three charges – one

alleging that the appellant failed to seek permission

from the department to purchase a flat in relation to

the matrimonial dispute between him and his

estranged wife and the second one is in respect of the

allegation of bigamy levelled against him by his

estranged wife. We have already noted earlier that

15

during the course of the matrimonial dispute, the

parties had arrived at a settlement and the flat that

was agreed to be given to the wife, was not purchased

by the appellant but by his brother, which fact is amply

borne out from the documents placed on record. The

matrimonial dispute between the parties stood closed

on a decree of divorce being granted on the basis of

mutual consent. That the respondents were also

cognizant of the said fact, is apparent from the

contents of O.M. dated 15th July, 2015 which records

inter alia that the said allegations levelled by the wife

had not been established. The third charge was

relating to the appellant having attended Court

hearings without sanctioned leave. However, the

disciplinary proceedings initiated against the appellant

on 17th July, 2019 were abandoned by the

respondents on the order of compulsory retirement

being passed against him in less than three months

reckoned therefrom, on 27th September, 2019.

38. The appellant has made allegations of institutional

bias and malice against the respondents on the plea

that the Chairman, CBDT who was a Member of the

Review Committee, was facing three contempt

proceedings relating to the appellant’s service dispute,

wherein notices had been issued by the High Court as

well as the Tribunal. There is no doubt that rule of law

is the very foundation of a well-governed society and

the presence of bias or malafides in the system of

governance would strike at the very foundation of the

values of a regulated social order. The law relating to

mala fide exercise of power has been the subject matter

of a catena of decisions [Refer: S. Pratap Singh v. State

of Punjab23; Jaichand Lal Sethia v. State of W.B24;

J.D. Srivastava v. State of M.P And Others25; and

Express Newspapers Pvt. Ltd. And Others v. Union of

India And Others26]. It has been repeatedly held that

16

any exercise of power that exceeds the parameters

prescribed by law or is motivated on account of

extraneous or irrelevant factors or is driven by

malicious intent or is on the face of it, so patently

arbitrary that it cannot withstand judicial scrutiny,

must be struck down. In the instant case, though the

appellant has levelled allegations of institutional bias

and prejudice against the respondents, particularly

against the then Chairman, CBDT who was a Member

of the Review Committee, the said officer was not

joined by the appellant as a party before the Tribunal

or the High Court, for him to have had an opportunity

to clarify his stand by filing a counter affidavit. Hence,

these allegations cannot be looked into by this Court.

39. Dehors the aforesaid allegations of institutional

bias and malice, having perused the material placed on

record, we find merit in the other grounds taken by the

appellant. It is noticed that though FR 56(j)

contemplates that the respondents have an absolute

right to retire a government servant in public interest

and such an order could have been passed against the

appellant any time after he had attained the age of fifty

years, the respondents did not take any such decision

till the very fag end of his career. The impugned order

of compulsory retirement was passed in this case on

27th September, 2019 whereas the appellant was to

superannuate in ordinary course in January, 2020.

There appears an apparent contradiction in the

approach of the respondents who had till as late as in

July, 2019 continued to grade the appellant as

‘Outstanding’ and had assessed his integrity as

‘Beyond doubt’. But in less than three months

reckoned therefrom, the respondents had turned turtle

to arrive at the conclusion that he deserved to be

compulsorily retired. If the appellant was worthy of

being continued in service for little short of a decade

17

after he had attained the age of 50 years and of being

granted an overall grade of 9 on the scale of 1 - 10 on

31st July, 2019 it has not been shown as to what had

transpired thereafter that made the respondents resort

to FR 56(j) and invoke the public interest doctrine to

compulsorily retire him with just three months of

service left for his retirement, in routine. In such a

case, this Court is inclined to pierce the smoke screen

and on doing so, we are of the firm view that the order

of compulsory retirement in the given facts and

circumstances of the case cannot be sustained. The

said order is punitive in nature and was passed to

short-circuit the disciplinary proceedings pending

against the appellant and ensure his immediate

removal. The impugned order p assed by the

respondents does not pass muster as it fails to satisfy

the underlying test of serving the interest of the public.

40. In view of the above discussion, it is deemed

appropriate to reverse the impugned judgment dated

31st May, 2022 and quash and set aside the order

dated 27th September, 2019 passed by the

respondents, compulsorily retiring the appellant.

Resultantly, the adverse consequences if any, flowing

from the said order of compulsory retirement imposed

on the appellant, are also set aside. The appeal is

allowed and disposed of on the aforesaid terms while

leaving the parties to bear their own costs.”

28. On 15

th March, 2024, the respondents issued a

fresh notification inviting applications from aspiring

candidates for appointment as Members of the ITAT

for a tenure of four years. The petitioner thereafter

made repeated representations to the then

18

Secretary

9, Department of Revenue, seeking

implementation of the judgment dated 3

rd March,

2023 passed by this Court . However, no action

ensued. In these circumstances, the petitioner was

constrained to approach this Court by filing

Contempt Petition (Civil) No. 210 of 2024, titled

“Capt. Pramod Kumar Bajaj v. XXX and Anr”

10.

29. This Court, vide order dated 29

th July, 2024,

summoned “the Officer”, being the then Revenue

Secretary, in the contempt proceedings for deliberate

defiance of the judgment passed by this Court. The

Officer tendered an unconditional written apology in

the aforesaid contempt proceedings. Vide order dated

5

th August, 2024, this Court was pleased to direct the

respondents to release all consequential benefits in

favour of the petitioner on or before 15

th August,

2024.

30. Meanwhile, the CBDT suo motu dropped the

charge memorandum issued to the petitioner vide

proceedings dated 2

nd August, 2024.

31. However, no consequential order offering

appointment to the petitioner as Member

9

Hereinafter, referred to as “the Officer”.

10

Name of the Officer has been screened as he holds a sensitive position.

19

(Accountant), ITAT was issued. Instead, the petitioner

was again called upon to appear before the fourth re-

constituted SCSC, chaired by an Hon’ble sitting

Judge of this Court as per the prescribed procedure.

E. Fourth Search-cum-Selection Committee

and Present Writ Petition

32. Upon appearing before the fourth SCSC in its

meeting held on 1

st September, 2024, the petitioner

was surprised to find that “the Officer” who had

earlier been actively involved in matter relating to the

petitioner’s protracted struggle for appointment and

had faced contempt proceedings initiated by the

petitioner (Contempt Petition (C) No.210/2024), was

included as a member of the Committee.

33. Thereafter, by proceedings communicated in

November, 2025, the candidature of the petitioner

was rejected by the Committee.

34. Aggrieved by the minutes of the SCSC dated 1

st

September, 2024, which were received by the

petitioner in November, 2025, the petitioner has

approached this Court by filing the present writ

petition under Article 32 of the Constitution of India.

35. Notice was issued to the respondents on 2

nd

December, 2025, returnable on 16

th December, 2025

20

on which date appearance was entered on behalf of

the Union of India, and two weeks’ time was sought

to obtain instructions and to file a counter affidavit,

if necessary. It was made clear on the very date that

no further time would be granted for the said

purpose, keeping in view the fact that, if the

petitioner were to be considered for appointment as a

Member of the ITAT at this stage, he would be left

with a very short tenure. Despite service of notice and

grant of opportunity, neither a counter affidavit was

filed nor did anyone appear on behalf of the

respondents when the matter was taken up on 15

th

January, 2026. Accordingly, we have heard the

petitioner, who appeared in -person, and have

carefully perused the material available on record.

DISCUSSION AND ANALYSIS

36. As per the factual matrix noted above, at every

stage of proceedings, the respondents have

deliberately created hurdles in the path of the

petitioner by either putting up cooked-up charges or

failing to ensure compliance with the orders passed

by various fora. Even in the present case, the rank

procrastination exhibited by the respondents in not

21

filing a counter affidavit inspite of the specific

direction given by this Court, manifests that by not

instructing the counsel to file the counter affidavit,

the departmental Officers desired to waste precious

time and deprive the petitioner of having access to

the slender window which remains available as he is

approaching the age of 70 years being the outer age

limit for the assignment. Even after the judgment was

reserved on 15

th January, 2026, there has been no

attempt on behalf of the respondents to make any

mention or to seek leave to file a counter affidavit so

as to traverse the averments set out in the writ

petition.

37. The petitioner in the writ petition has attributed

serious bias, mala fides, and personal vendetta to the

departmental officers. It is asserted that the

petitioner was continuously and repeatedly treated

with vindictive approach inspite of having ranked

first in the initial evaluation by the SCSC constituted

in the year 2014. The Department continued to

procrastinate, and created intentional hurdles in the

appointment of the petitioner. Not only this,

roadblocks were created and his subsisting service as

a Senior Officer in the Income Tax Department was

22

cut short by the action of compulsory retirement

which was later struck down by this Court . This

attribution and perception of bias pleaded in the writ

petition remains uncontroverted, as no reply or

counter affidavit has been filed on behalf of the

respondents.

38. The petitioner fervently contended that one of

the members of the fourth SCSC was none other than

“the Officer”, who had earlier been a respondent in

contempt proceedings instituted by the petitioner

before this Court. He contended that owing to his

prior prosecution in contempt, “the Officer”

harboured animus and a biased attitude against the

petitioner.

39. The petitioner further contended that the fact

that the decision of the SCSC is supposed to have

been taken with a consensus, the presence of “the

Officer” as a member of the Committee gave rise to a

genuine apprehension as regards the fairness of the

process, and particularly in view of the fact that on

two earlier occasions the SCSCs had recommended

the petitioner for appointment with high evaluation.

Repeated vindictive actions and egoistic approach

was adopted by the Departmental officers who

23

persecuted the petitioner on baseless charges, and in

a gross arbitrary manner, which conclusion has been

recorded by this Court in the judgment dated 3

rd

March, 2023 (supra). In this backdrop, it was urged

that the presence and participation of “the Officer” in

the composition of the SCSC, which resolved not to

recommend the petitioner, bolsters the genuine and

sustainable apprehension expressed by the petitioner

that the decision-making process was biased from

the core.

40. Having thoroughly considered the material on

record and more particularly, the observations made

by this Court in the judgment dated 3

rd March, 2023,

we are overwhelmingly convinced that the petitioner

has been subjected to grave injustice and rank high-

handedness by the respondents by intentionally

hampering and impeding his candidature for

appointment as Member (Accountant), ITAT.

Notwithstanding his promotion to the post of

Commissioner of Income Tax and imminent

probability for further promotion, a trumped-up

baseless charge memorandum was issued to him,

which was ultimately dropped . However, taking

shelter behind this subterfuge, the petitioner was

24

compulsorily retired. The order of compulsory

retirement was ultimately set aside by this Court in

an earlier round of litigation vide the judgment dated

3

rd March, 2023 (supra), recording strong

observations on the high-handed and mala fide

manner in which the departmental action had been

undertaken.

41. Though considering the fact that “the Officer”

now holds a sensitive position, we refrain from

making any observations on his role in the entire

sequence of events leading to the present litigation.

Nonetheless, we feel that the inclusion of “the Officer”

as a member of the SCSC , which rejected the

petitioner’s candidature, has undoubtedly created a

genuine perception of bias in the mind of the

petitioner and was in gross violation of the principles

of natural justice. “The Officer” had earlier faced

contempt proceedings at the instance of the

petitioner in relation to the very same ongoing tussle,

and in such circumstances, a reasonable

apprehension as to his impartiality and

independence in the process of selection of the

petitioner as Member (Accountant), ITAT, is fortified.

True it is, that “the Officer” was only one among the

25

members of the Committee; however, his presence

and participation in the selection process, inspite of

his arraignment as a contemnor in the contempt

proceedings initiated at the instance of the petitioner,

was not justified and rendered the decision-making

process vulnerable on the touchstone of the

principles of natural justice and gives rise to a

reasonable apprehension of bias.

42. Reference in this regard may usefully be made

to the observations of this Court in State of Gujarat

v. R.A. Mehta

11

on the doctrine of bias, which

encapsulate the principles governing the present

controversy. The relevant observations made by this

Court in the said judgment are reproduced

hereinbelow: -

“58. Absence of bias can be defined as the total

absence of any preconceived notions in the mind of

the authority/Judge, and in the absence of such a

situation it is impossible to expect a fair deal/trial

and no one would therefore see any point in

holding/participating in one as it would serve no

purpose. The Judge/authority must be able to think

dispassionately and submerge any private feelings

with respect to each aspect of the case. The

apprehension of bias must be reasonable i.e.

which a reasonable person would be likely to

entertain. Bias is one of the limbs of natural

11

(2013) 3 SCC 1.

26

justice. The doctrine of bias emerges from the

legal maxim nemo debet esse judex in propria

causa. It applies only when the interest

attributed to an individual is such so as to tempt

him to make a decision in favour of, or to further

his own cause. There may not be a case of actual

bias, or an apprehension to the effect that the

matter most certainly will not be decided or dealt

with impartially but where the circumstances are

such so as to create a reasonable apprehension

in the minds of others that there is a likelihood

of bias affecting the decision, the same is

sufficient to invoke the doctrine of bias.

59. In the event that actual proof of prejudice is

available, the same will naturally make the case

of a party much stronger, but the availability of

such proof is not a necessary precondition, for

what is relevant, is actually the reasonableness

of the apprehension in this regard in the mind of

such party. In case such apprehension exists the

trial/judgment/order, etc. would stand vitiated

for want of impartiality and such judgment/order

becomes a nullity. The trial becomes coram non

judice.

60. While deciding upon such an issue, the court

must examine the facts and circumstances of the

case and examine the matter from the viewpoint of

the people at large. The question as regards

“whether or not a real likelihood of bias exists must

be determined on the basis of probabilities that are

inferred from the circumstances of the case by the

court objectively or upon the basis of the impression

that may reasonably be left upon the minds of those

aggrieved or the public at large”. (Vide S.

Parthasarathi v. State of A.P. [(1974) 3 SCC 459 :

1973 SCC (L&S) 580 : AIR 1973 SC 2701], State of

27

Punjab v. V.K. Khanna [(2001) 2 SCC 330: 2001 SCC

(L&S) 1010: AIR 2001 SC 343], N.K. Bajpai v. Union

of India [(2012) 4 SCC 653] and State of

Punjab v. Davinder Pal Singh Bhullar [(2011) 14 SCC

770 : (2012) 4 SCC (Civ) 1034: AIR 2012 SC 364].

[Emphasis supplied]

The aforesaid observations made by this Court makes

it clear that an authority exercising adjudicatory or

selection functions must not only act fairly but must

also appear to act fairly, for justice must manifestly

be seen to be done. The rule against bias would

certainly be attracted where the person/authority

intrinsically involved in the evaluation process has a

personal connection with, personal interest in, or

prior involvement in the matter under consideration,

or has earlier taken a position which he may be

interested in sustaining. The doctrine is applied not

only to avoid the possibility of a partial decision but

also to preserve public confidence in the impartiality

of the decision-making process.

43. We may also gainfully refer to the judgment of

the High Court of Judicature at Allahabad in Km.

Shailja Srivastava v. Banaras Hindu

28

University

12, wherein the following observations

were made: -

“15. The allegations of the petitioners are that the

proceedings before the Examination Grievance

Board as well as Central Grievance Board are both

vitiated. Before dealing with the allegations

regarding the Examination Grievance Board I may

first mention that the proceedings before the Central

Grievance Board were vitiated because of the

presence of respondent No. 4 in the said Board. In

paragraph 19 of the counter affidavit of the

University it is mentioned that the respondent No. 4

was a member of the Central Grievance Board which

considered the petitioners representation. Annexure

CA-1 to the counter affidavit of respondent No. 4 also

mentions that the respondent No. 2 was present in

the meeting of the Central Grievance Board. In my

opinion, the presence of the respondent No. 4 on the

Central Grievance Board completely vitiates the

proceedings of the said Board since the main

allegations of the petitioners were against

respondent No. 4. In this connection it may be

mentioned that by now it is well establi shed

principle of Administrative Law that not only

should justice be done but should appear to be

done. Since the main allegations of the

petitioners were against respondent No. 4, she

should have disassociated herself from the

proceeding of the Central Grievance Board, in

this connection I may mention the relevant

decisions on this point.

16. In A.K. Kraipak v. Union of India, [(1969) 2

SCC 262 : AIR 1970 SC 150.] the Hon'ble

12

1992 SCC OnLine All 465.

29

Supreme Court held that the presence of a

candidate for selection as a member of the

Selection Board vitiates the proceeding of the

Board. In that case the Acting Chief Conservator

of Forests Naquishbund, who was himself a

candidate for selection was a mem ber of the

Selection Board. The Hon'ble Supreme Court held

that the entire proceedings for selection were

vitiated on this account. Although each member

of the Selection Board other than Naqisbund filed

affidavits in the court swearing that Naquisbund

hand in no manner influenced their decision in

making the selection it was nevertheless

observed by the court “in a group deliberation

each member of the group 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. It is no wonder that

the other members of the Selection Board are

unaware to the extent to which his opinion

influenced their conclusion.” The Court also held

that the rules of natural justice apply not only to

quasi-judicial, proceedings but also to certain

administrative proceedings.

17. In G. Sarana v. Lucknow University, [(1976)

3 SCC 585 : AIR 1976 SC 2428.] it was observed

“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 co nduct have to be taken into

consideration. In a group deliberation and

decision like that of the Selection Board the

members do not function as computers. Each

member of the group of Board is bound to

influence the other, more so, if the person

30

concerned is a person with special knowledge.

His bias is likely to operate in a subtle manner.”

In paragraph 13 of the said decision the Hon'ble

Supreme Court has quoted professor S.A. De

Smith “the case law on the point is thin, but on

principle it was seen that where a report on

determination lacking final effect may

nevertheless have a seriously judicial effect on

the legally protected interest of individuals (e.g.

that it is a necessary pre-requisite of the final

order) and the person making the report or

preliminary decision must not be affected by the

interest or likelihood of bias.

18. In J. Mahapatra & Co. v. State of Orissa, [(1984)

4 SCC 103 : AIR 1984 SC 1572.] the selection of

books for school and college libraries was held to be

vitiated because the Selection Committee included a

person who was the author of the books which had

been submitted for selection by the committee.

19. In K. Chellaih v. Chiamman, [AIR 1973 Mad

122.] the Chairman of the Board of the Industrial

Finance Corporation had passed the dismissal order

against the petitioner, and the said Chairman was a

member of the Board which considered the appeal

against the dismissal order. It was held that the

appellate decision was vitiated.

20. In Kirti Deshmankar v. Union of India, [(1991) 1

SCC 104.] it was held that the presence of the

mother-in-law of the selected candidate on the

selection committee vitiated the selection. It was also

held therein, following the decision in Ashok Kumar

Yadava v. State of Haryana, [(1985) 4 SCC 417.]

that it was not necessary to establish actual bias,

and that if it could be shown that there was

reasonable likelihood of bias, the selection process

was vitiated.

31

21. In Halsbury's Laws of England, 4th Ed. Vol. 1,

page 87 (para 70) it has been “if one of the

adjudicators has a direct pecuniary interest in the

issue, the proceedings will be set aside even though

none of his fellow adjudicators was thus

disqualified; and it appears that the same principle

applies where one adjudicator is subject to

disqualification for likelihood of bias. In such cases

the court will not consider whether the disqualified

person did in fact influence the decision.”

22. In Rex v. Darnsley, M.B.S., [1976 (3) All ER 452.]

it was observed “it must be remembered that in

application for certiorari the applicant knows very

little of what has happened behind the scene. He

only knows that the decision has been taken which

is adverse to him, and he complai ns of it. His

statement of grounds should not be treated as rigidly

as a pleading in an ordinary civil action.”

23. From the above decisions the following

principles relating to the rule of bias emerge:

(1) It is not necessary to establish actual

bias. A reasonable apprehension or

likelihood of bias is sufficient to vitiate the

proceedings.

As stated by Garner in his Administrative

Law “Turning our attention to the substance

of the rule relating to bias, the first point to

emphasise is that it is not necessary to

prove actual bias. The natural justice bias

rule looks to external appearances r ather

than the proof of actual improper exercise of

power”. In this connection Geoffrey Flick in

his book Natural Justice has mentioned

“There are two established lines of

authority, one to the effect that an interest

will disqualify if it gives rise to a real

32

likelihood of bias, the other to the effect

that all that is needed is a reasonable

suspicion of bias. It is the reasonable

suspicion test which currently seems to hold

sway.” It may also be pointed out here that

in the case of Kirti Deshmankar (Supra) the

Hon'ble Supreme Court has used the words

“reasonable likelihood of bias”, and not “real

likelihood of bias. This distintion between

real likelihood and reasonable likelihood is

important, and in my opinion, even if there

is no real likelihood of bias, a reasonable

likelihood from the point of view of the

petitioners will vitiate the proceedings.

In G. Sarana's case (supra) the test laid

down was “Whether there is a substantial

possibility of bias animating the mind of the

member against the aggrieved party.”

(2) Even if one member of the selection

committee suffers from the disqualification

of the rule of bias, then the entire selection

or proceeding is vitiated because it is not

possible to known as to what extent such

disqualified member influenced the others.

(3) Where a person is disqualified due to rule

of bias, he should disassociate himself from

the proceedings.

(4) Bias in a member of a recommendatory

body will also vitiate the proceedings.”

[Emphasis supplied]

44. The rule of law constitutes the foundation of a

well-governed society, and the shadow of bias or mala

fides in the exercise of power concerning public

33

functions strikes at the very root of a regulated social

order. The law relating to mala fide exercise of power

has been the subject matter of discussion in a catena

of decisions of this Court.

13 It has been consistently

held that where statutory or administrative power is

exercised for purposes extraneous to those for which

it is conferred, or is influenced by irrelevant

considerations, or is actuated by malice in law, such

exercise cannot be sustained. Judicial review in such

circumstances is directed not merely at the decision

but at the decision-making process itself.

45. Further, in the absence of any counter affidavit

on behalf of the respondents, the averments made in

the writ petition have remained uncontroverted. In

such circumstances, this Court is constrained to

proceed on the basis that all relevant facets of the

case may not have been placed before the SCSC at

the time when the petitioner’s candidature was

considered. There is a genuine possibility that the

fact of “the Officer” having earlier faced contempt

proceedings at the instance of the petitioner was not

13

Pratap Singh v. State of Punjab, 1963 SCC OnLine SC 10; Jaichand

Lal Sethia v. State of W.B., 1966 SCC OnLine SC 96; E.P. Royappa v.

State of Tamil Nadu, 1974 AIR 555; Jaichand Lal Sethia v. State of

W.B., 1966 SCC OnLine SC 96.

34

brought to the notice of the Committee. In the

interest of fairness and to dispel any reasonable

apprehension of bias, it would have been appropriate

for “the Officer” to have recused from the evaluation

process on his own. His failure to do so fortifies the

aspersion of bias.

46. Consequently, the minutes of the meeting of the

SCSC held on 1

st September, 2024, insofar as they

relate to the petitioner and whereby, he was not

recommended for appointment as Member

(Accountant), ITAT, are hereby set aside. The

respondent No.1-DoPT shall ensure that a fresh

meeting of the SCSC is convened within a period of

four weeks from today to consider the candidature of

the petitioner for the above post, ensuring exclusion

of “the Officer” from the said proceedings. The

outcome of the SCSC proceedings shall be

communicated to the petitioner within a further

period of two weeks thereafter.

47. In view of the rank procrastination shown by the

respondents in these proceedings and the deliberate

obstacles created by them in the path of the

petitioner bordering to vendetta and as the

allegations set out in the writ petition remain

35

untraversed, we impose cost quantified at Rs.5 lakhs

on the respondents. The cost shall be deposited in the

Registry of this Court within a period of four weeks

from today and the same shall thereafter be paid to

the petitioner.

48. The writ petition is disposed of accordingly.

49. Pending application(s), if any, shall stand

disposed of.

….……………………J.

(VIKRAM NATH )

...…………………….J.

(SANDEEP MEHTA)

NEW DELHI;

JANUARY 30, 2026.