2025 INSC 126 1 of 44

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 4806 OF 2011

KRISHNADATT AWASTHY APPELLANT(S)

VERSUS

STATE OF M.P. & ORS. RESPONDENT(S)

WITH

CIVIL APPEAL NO. 4807 OF 2011

CIVIL APPEAL NO. 4808 OF 2011

CIVIL APPEAL NO. 4809 OF 2011

JUDGMENT

Hrishikesh Roy J

1. Heard Mr. Vivek Tankha, learned Senior Counsel appearing for

the appellant. The respondents are represented by Ms. Mrinal

Gopal Elker, learned counsel and Mr. Avdhesh Kumar Singh,

learned counsel.

2. This matter is posted before this larger Bench on account of the

split verdict rendered on 4.4.2024 by the two learned Judges of

this Court. The case pertains to the validity of appointments

made for the post of school teachers (Shiksha Karmi Grade III)

in Janpad Panchayat, Gaurihar in the year 1998. Four Civil

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Appeals were filed before this Court by ten persons, who are

alleged to be the relatives of the members of the selection

committee and were placed in the final select list of 249

Shiksha Karmis.

3. While Justice JK Maheshwari upheld the finding to set aside

the selection of Shiksha Karmis on account of the violation of

the first limb of the principle of natural justice i.e. rule against

bias, Justice KV Vishwanathan has however upheld the

selection, citing inter alia, a breach of the right to a fair hearing.

Therefore, in this case, we are confronted with a conflict

between the two foundational principles of natural justice i.e.

rule against bias (nemo judex in causa sua) and the right to a

fair hearing (audi alteram partem).

I. RELEVANT FACTS

4. Initially, one Kunwar Vijay Bahadur Singh Bundela challenged

the preparation of the select list by filing an appeal before the

Collector, District Chhatarpur, who quashed the select list, vide

order dated 31.8.1998 and remitted the matter for fresh

consideration. Thereafter, a fresh select list consisting of 249

candidates including the names of appellants (and four others)

was published on 16.9.1998 and the appointment order was

issued on 17.9.1998. The selection and appointment of the

appellants was challenged by an unsuccessful candidate-

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Archana Mishra (Respondent No. 4 herein), before the

Collector, District Chatarpur, Madhya Pradesh, under Section

3 of Madhya Pradesh Panchayat (Appeal and Revision) Rules,

1995(for short “Appeal and Revision Rules,1995) alleging that

elements of nepotism, corruption and bias have seeped into the

selection process because of the composition of the selection

committee. The Collector, accepting the challenger’s contention

vide order dated 02.06.1999, set aside the appellants’

appointment by concluding that the recruitment was vitiated

on account of bias and nepotism. The Collector found fault with

the composition of the selection committee, some of whom were

the family members of the appellants herein and opined that

the award of marks in the selection, was improper. Relying on

Section 40(c) and Section 100 of Panchayat Raj Act Avam Gram

Swaraj Adhiniyam, 1993 (for short “Adhiniyam, 1993), it was

noted that office bearers cannot facilitate financial gains to

relatives. The Collector further noted that:

‘ …it is proved that the appointment of these relatives

could not be deemed to be according to the prescribed

procedure and the scheme and therefore, it is not

necessary to call them up’.

5. Relying on the MP High Court’s judgment in Hira Lal Patel v

Chief Executive Officer, District Panchayat, Sarangarh

1, the

1

(1998) 2 MP WN 39

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Collector without issuing notice to the selectees observed that

if the appointment is not made as per the scheme, it can be

terminated without giving any opportunity of hearing.

6. Aggrieved by the above interference with the selection, the

appellants filed a Revision petition before the Commissioner,

Revenue, Sagar Division under section 5 of the Appeal and

Revision Rules,1995. The selectees contended therein that

without arraying them and without affording them any hearing,

the Collector could not have interfered with the selection and

this would be in violation of the principles of natural justice.

The Revision Petition was however dismissed by the

Commissioner vide order dated 14.3.2000. In the said order

the Commissioner observed in para (6) that the selection is

contrary to Section 40(C) of the Adhiniyam, 1993. The

Revisional Authority brushed aside the plea of non-joinder and

of not affording opportunity of hearing, by relying on the

admission of the relationship of the appellants with the

members of the selection committee, as noted in the reply filed

by the Chief Executive Officer. Aggrieved by the order of the

Commissioner, the appointees filed a writ petition under Article

226 of the Constitution of India before the Madhya Pradesh

High Court which was however dismissed by the learned single

judge vide order dated 31.7.2008. Relying on State Bank of

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Patiala v SK Sharma

2, it was observed that the opportunity of

hearing has to be tested on the touchstone of actual prejudice

being caused to the writ petitioners. It was also noted that full

opportunity of hearing was granted at the Revisional stage by

the Commissioner. According to the learned Judge the Chief

Executive officer’s reply established that few selectees were

relatives of Smt. Pushpa Dwivedi(Chairperson of the selection

Committee) and similarly, close relatives of Shri Swami

Singh(member of the Education Committee) such as his sister-

in-law, son, daughter-in-law and nephew were also among the

selected candidates. The Single Judge relied on the five-judge

bench decision of this Court in AK Kraipak v Union of India

3(for

short “AK Kraipak”) where it was emphasized that the presence

of interested parties in the selection committee creates a

reasonable likelihood of bias, even if direct participation is

limited. It was therefore concluded that even though Smt.

Pushpa Dwivedi(Chairperson) and Swami Singh(member)

recused themselves during interviews of their alleged relatives,

their presence on the committee could have influenced the

overall selection process.

2

1996 (3) SCC 364

3

1969 (2) SCC 262

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7. The appellants then preferred a writ appeal which was

dismissed by the Division bench of the High Court on

15.12.2008. The Division Bench noted inter alia that:

‘though it was imperative on the part of appellants to

implead the affected parties, yet as the affected parties had

been given full opportunity from all aspects by the

revisional forum as well as by the Learned Single Judge,

we do not think it apt and apposite to quash the order and

remand the matter to the Collector’.

8. Relying on decisions of this Court on bias

4, the Division Bench

observed that bias is a state of mind at work and when the

degree of relationship is in quite proximity, bias has to be

inferred.

9. Thereafter when the matter reached the Supreme Court,

Justice KV Vishwanathan concluded that the selection of

appellants was erroneously set aside, in breach of the principle

of audi alteram partem. It was further held that the principle

must be adhered to at the original stage. Furthermore, Rule 9

of the Appeal and Revision Rules, 1995 was not complied with.

It was also observed that the orders of the Collector &

Commissioner made no reference either to definition of ‘relative’

in explanation to Section 40(c) of Adhiniyam nor to the

4

A.K. Kraipak v Union of India (1969) 2 SCC 262; J. Mohapatra & Co. v. State of

Orissa, (1984) 4 SCC 103, Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC

417, Kirti Deshmankar v. Union of India, (1991) 1 SCC 104, Gurdip Singh v. State

of Punjab, (1997) 10 SCC 641, Utkal University v. Nrusingha Charan Sarangi, (1999)

2 SCC 193, G.N. Nayak v. Goa University, (2002) 2 SCC 712, Govt. of

T.N. v. Munuswamy Mudaliar, 1988 Supp SCC 651 : AIR 1988 SC 2232, Bihar State

Mineral Development Corporation v. Encon Builders (I) (P) Ltd., (2003) 7 SCC 418.

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resolution providing for recusal. Non-impleadment of parties

amounted to ‘no opportunity at all’ for hearing was the

conclusion reached by Justice KV Vishwanathan.

10. On the other hand, Justice J.K. Maheshwari upheld the

decision to cancel the appointment of the appellants and

opined that the first limb of natural justice i.e. ‘rule against

bias’ was irrefutably proved, as reasonable likelihood of bias

was established. The plea of non-impleadment was considered

to be a useless formality. It was further held that unless

prejudice is demonstrated, mere non-joinder at the initial stage

does not violate the principles of natural justice.

II. SUBMISSIONS

11. The foundational contention of the appellants is that since their

appointments were cancelled without affording them any

hearing and without arraying them as a party in the challenge

by the respondent no. 4(Archana Mishra), the adverse decision

taken against the appellants, is legally unsustainable. Mr.

Vivek Tankha, the learned Senior Counsel would argue that an

incorrect narrative was the basis for the allegation made by the

respondent No. 4, about unfair selection. It is specifically

pointed out that none of the relatives of the candidates had

participated during the selection of the appellants. More

importantly, the related persons had not awarded any marks

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to influence the selection. Specifically adverting to the marks

obtained by the challenger and the selectees, the appellants

argue that it was a fair selection and that intervention was

unmerited.

12. On the other hand, learned Counsel for the respondent, Mrinal

Gopal Elker, and Avdhesh Kumar Singh, would rely on Section

40(c) of the Adhiniyam,1993 to project that the said section

provides that ‘any of the office bearers shall not cause financial

gain to his relatives’. According to them, the presence of close

relatives in the selection process vitiated the process of

selection of Shiksha Karmis. They projected that non-

adherence to the principles of audi alteram partem, if any, was

cured by the proceedings before the commissioner wherein

appellants were given full opportunity. On that basis, it was

submitted that the non- granting of opportunity of hearing by

the Collector at the original stage was inconsequential.

According to the respondent, the reasonable likelihood of bias

in selection is established by the close relationship between the

Committee members and the selected candidates who have

been awarded high marks in comparison to other candidates in

the interview process.

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III. ISSUES

13. Going by the above submissions, the following broad issues fall

for our consideration:

A. Whether the selection is vitiated for violation of the first

limb of natural justice i.e. rule against bias?

B. Where it is a case of violation of the principle of audi

alteram partem? Is demonstration of prejudice necessary

to succeed with a claim of violation of the principle of audi

alteram partem?

C. Whether the breach of the principle of audi alteram

partem at the original stage can be cured, at the

Revisional stage?

IV. DISCUSSION

14. Judicial review of administrative actions are permissible on the

grounds of illegality, unreasonableness or irrationality and

procedural irregularity

5. Lord Diplock

6 succinctly described

each of the aforementioned grounds for judicial review as

under:

“By “illegality” as a ground for judicial review I mean

that the decision-maker must understand correctly

the law that regulates his decision-making power and

must give effect to it. Whether he has or not is par

excellence a justiciable question to be decided, in the

5

State of A.P. v. McDowell & Company, (1996) 3 SCC 709; Tata Cellular v. Union of

India, (1994) 6 SCC 651; and Council of Civil Service Unions v. Minister for Civil

Service, 1985 AC 374 (HL); Mohd. Mustafa v. Union of India, (2022) 1 SCC 294.

6

Council of Civil Service Unions v. Minister for Civil Service, 1985 AC 374.

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event of dispute, by those persons, the Judges, by

whom the judicial power of the State is exercisable.

By “irrationality” I mean what can by now be succinctly

referred to as “Wednesbury [Associated Provincial

Picture Houses v. Wednesbury Corpn., (1948) 1 KB 223

(CA)] unreasonableness”. It applies to a decision which

is so outrageous in its defiance of logic or of accepted

moral standards that no sensible person who had

applied his mind to the question to be decided could

have arrived at it. Whether a decision falls within this

category is a question that Judges by their training and

experience should be well equipped to answer, or else

there would be something badly wrong with our

judicial system. To justify the court's exercise of this

role, resort I think is today no longer needed to

Viscount Radcliffe's ingenious explanation

in Edwards v. Bairstow [Edwards v. Bairstow, 1956

AC 14 : (1955) 3 WLR 410 (HL)] , of irrationality as a

ground for a court's reversal of a decision by ascribing

it to an inferred though unidentifiable mistake of law

by the decision-maker. “Irrationality” by now can stand

on its own feet as an accepted ground on which a

decision may be attacked by judicial review.

I have described the third head as “procedural

impropriety” rather than failure to observe basic rules

of natural justice or failure to act with procedural

fairness towards the person who will be affected by the

decision. This is because susceptibility to judicial

review under this head covers also failure by an

Administrative Tribunal to observe procedural rules

that are expressly laid down in the legislative

instrument by which its jurisdiction is conferred, even

where such failure does not involve any denial of

natural justice. But the instant case is not concerned

with the proceedings of an Administrative Tribunal at

all.”

15. It is equally well-settled that courts under its writ jurisdiction

do not interfere with selections made by expert bodies by

reassessing the comparative merits of the candidates.

Interference with selections is limited to decisions vitiated by

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bias, malafides and violation of statutory provisions

7.

Additionally, this Court has also held that administrative

action can be reviewed on the ground of proportionality if it

affects fundamental rights guaranteed under Article 19 and 21

of the Constitution of India

8.

16. In this case, our primary focus is on procedural impropriety

and in particular, the breach of the principles of natural justice.

The process for arriving at a decision is equally significant as

the decision itself. If the procedure is not ‘fair’, the decision

cannot be possibly endorsed. The principles of natural justice

as derived from common law which guarantee ‘fair play in

action’

9, has two facets which include rule against bias and the

rule of fair hearing. Additionally, a reasoned order has also

been regarded as a third facet of the principles of natural

justice

10 and holds utmost significance in ensuring fairness of

the process.

ISSUE A

7

Dalpat Abasaheb Solunke v. B.S. Mahajan, (1990) 1 SCC 305; Badrinath v. State

of T.N., (2000) 8 SCC 395, National Institute of Mental Health & Neuro Sciences v. K.

Kalyana Raman, 1992 Supp (2) SCC 481; I.P.S. Dewan v. Union of India, (1995) 3

SCC 383; UPSC v. Hiranyalal Dev, (1988) 2 SCC 242; ; M.V. Thimmaiah v. UPSC,

(2008) 2 SCC 119 and UPSC v. M. Sathiya Priya, (2018) 15 SCC 796

8

Om Kumar v. Union of India, (2001) 2 SCC 386 : 2001 SCC (L&S) 1039; Union of

India v. G. Ganayutham, (1997) 7 SCC 463 : 1997 SCC (L&S) 1806

9

Maneka Gandhi v. Union of India, (1978) 1 SCC 248

10

S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 ; Siemens Engg. & Mfg. Co. of

India Ltd. v. Union of India, (1976) 2 SCC 981; CCI v. SAIL, (2010) 10 SCC

744; Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496

12 of 44

17. The first issue that falls for our consideration is whether the

selection stands vitiated on the ground of violation of the rule

against bias. It must be borne in mind that when a statute

specifies the procedure for administrative decision making, the

principles of natural justice supplement but do not substitute

the statutory procedure

11. However, even if the statute does not

provide for the administrative procedure, the authorities are

bound to make decisions in adherence to the principles of

natural justice.

18. Let us now consider the relevant statutory provisions in the

present case which operate alongside the common law

principles. The Madhya Pradesh Panchayat Shiksha Karmis

(Recruitment and Conditions of Service) Rules, 1997 is framed in

exercise of the powers conferred by sub-section (2) of Section

53, sub-section (1) of Section 70 read with subsection (1) of

Section 95 of Adhiniyam, 1993 is apposite. Rule 2(h) defines

‘Shiksha Karmi’ as under:

“Shiksha Karmi” means the person appointed by Zila

Panchayat or Janpad Panchayat, as the case may be,

for teaching in the schools under their control.”

19. Rule 5 deals with ‘Methods of Selection and Recruitment’. Sub-

rule 8 provides that the Selection Committee shall be

11

AK Kraipak v Union of India (1969) 2 SCC 262

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constituted consisting of members as specified in Schedule II

by the Zila Panchayat or the Janpad Panchayat, as the case

,may be. The relevant sub-Rule 9 reads as under:

(i) the Committee will assess the candidates called for

interview and award marks in the following manner:

"a) 60% marks for marks obtained in the qualifying

examination specified in Schedule II;

b) 25% marks for the teaching experience in the schools of

concerning Janpad Panchayat or Zila Panchayat. Similar

benefits will be given for teaching experience of equivalent

rural school. The decision of the Committee on the validity

and valuation of the certificate of teaching experience of

rural schools will be final;

c) 15% marks for oral test which may include

the test for-

i) communication skills in local dialect

ii) knowledge of local environment

iii) general knowledge

iv) training and teaching aptitude and

v) any other test which the Selection Committee may deem

fit.

d) Other things remaining the same, preference, preference

will be given to candidates who possess certificate in B. Ed,

BTI or D. Ed.

e) All other things remaining the same, in the final

selection, those who have teaching experience of schools

of Janpad Panchayat or Zila Panchayat will be given

preference.

(ii) Select list of each category shall be prepared on the

basis of above assessment in order of merit and shall

include 10% names in waiting list which shall be valid for

six months.”

20. The statutory Rules clearly specify the designation of those who

must be included in the selection committee, as outlined in

Schedule II of the Rules,1997. They are following:

“1.Chairperson, Standing Committee of Education of

Janpad Panchayat;

2. Chief Executive Officer, Janpad Panchayat;

3. Block Education Officer (Member Secretary);

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4. Two specialists in the subject to be nominated by

the Standing Committee for Education of whom one shall

be woman; and

5. All members from the Standing Committee of whom

atleast one belongs to Scheduled Castes, Scheduled Tribes

or OBC, in case there is no SC/ST/OBC member in

the Standing Committee then the same shall be

nominated from the General Body.”

21. Therefore, ‘all members from the Standing Committee’ were

required to be a part of the selection committee. It is also

important to note that the following resolution was passed by

the Standing Committee on recusal:

“(C) Letter No. 423/S.T.98 dated 26.07.1998 of the

Collector, Chhatarpur was read over by Chief

Executive Officer, in which it has been mentioned

that at the time of recruitment of teachers those

members and officers also take part in the interview

whose close relatives are the candidates due to

which the entire selection process is likely to be

affected. Therefore, the directions are given

toimmediately examine whether any candidate is

the close relative of the member of the Committee

in the interview. If any near relative of the member

or the officer is the candidate, then such member

or officer should not be present on the date of

interview and any impartial person should be kept

in his place. The Committee unanimously decided

that if any close relative of any member, officer or

subject expert appears for interview then the marks

to be given by that member, officer or subject

specialist should be given by Chief Executive

Officer and that member, officer or subject expert

shall not be present at the venue of interview. This

resolution has been passed unanimously.”

22. Rule 40 deals with the removal of office bearers of Panchayat

and provides as under:

“40. Removal of office-bearers of Panchayat- (1) The

State Government or the prescribed authority may

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after such enquiry as it may deem fit to make at any

time, remove an office bearer-

(a) if he has been guilty of misconduct in the

discharge of his duties; or

(b) if his continuance in office is undesirable in the

interest of the public: Provided that no person shall

be removed unless he has been given an opportunity

to show cause why he should not be removed from his

office.

Explanation-For the purpose of this sub-section

“Misconduct” shall include-

(a) any action adversely affecting,-

(i) the sovereignty, unity and integrity of India; or

(ii) the harmony and the spirit of common

brotherhood amongst all the people of State

transcending religious, linguistic, regional, caste or

sectional diversities; or

(iii) the dignity of women; or

(b) gross negligence in the discharge of the duties

under this Act;

[(c) the use of position or influence directly or

indirectly to secure employment for any relative in the

Panchayat or any action for extending any pecuniary

benefits to any relative, such as giving out any type of

lease, getting any work done through them in the

Panchayat by an office-bearer of Panchayat.

Explanation. - For the purpose of this clause, the

expression “relative” shall mean father, mother,

brother, sister, husband, wife, son, daughter, mother-

in-law, father-in-law, brother -in-law, sister-in-law,

son-in-law or daughter-in-law : ]”

23. The explanation to clause(c) provides for the definition of the

expression ‘relative’ to mean ‘father, mother, brother, sister,

husband, wife, son, daughter, mother-in-law, father-in-law,

brother-in-law, sister-in-law, son-in-law or daughter-in-law’.

Rule 100 of the Adhiniyam which has some relevance reads

thus:

“100. Penalty for acquisition by a member, office

bearer or servant of interest in contract. - If a member

or office bearer or servant of Panchayat knowingly

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acquires, directly or indirectly any personal share or

interest in any contract or employment, with, by or on

behalf of a Panchayat without the sanction of or

permission of the prescribed authority he shall be

deemed to have committed an offense under Section

168 of the Penal Code, 1860 (XLV of 1860).”

24. Having noted the relevant statutory provisions, a brief survey

of the jurisprudence on the appropriate test for bias and the

applicable standard of proof would now be in order before the

statutory law and the common law principles are applied to the

facts of the present case.

25. The principle of nemo judex causa sua found its origin in

English law. In Dimes v. Proprietors of the Grand Junction

Canal

12, the House of Lords in a case concerning pecuniary

interest observed that the rule against bias extends not only to

actual bias but also to the appearance of bias. This principle

was later extended to other forms of interest in R v. Sussex

Justices ex parte McCarthy

13 where it was held that ‘even a

suspicion that there has been improper interference with the

course of justice’, would lead to the vitiation of proceedings.

Lord Hewart noted that it is of fundamental importance that

justice should not only be done, but should manifestly and

undoubtedly be seen to be done. Lord Denning in Metropolitan

Properties Co. (FGC) v Lannon

14 noted that, ‘if right minded

12

Dimes v. The Proprietors of the Grand Junction Canal, (1852) 3 HLC 759

13

[1924] 1 KB 256

14

(1969) 1 QB 577

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persons would think that, in the circumstances, there was a

‘real likelihood of bias’ on his part, he should not sit. And if he

does sit, his decision does not stand’. It was further held that

‘there must be circumstances from which a reasonable man

would think it likely or probable that the justice, or chairman

as the case may be, would, or did, favour one side at the

expense of the other.’

26. The emphasis on ‘likely or probable’ as noted by Lord Denning,

was considered in R v Gough

15 (for short “Gough”) where the

Court shifted the focus to the possibility of bias rather than its

probability. The test articulated in Gough(supra), was whether

there was a ‘real danger of bias’ rather than a ‘real likelihood’

of bias. It prioritised the court’s assessment of bias over the

perception of a fair-minded and informed observer emphasising

that the court ‘personifies the reasonable man’. This test was

criticised in other common law jurisdictions for veering away

from the public perception of bias. The House of Lords modified

the said test in Porter v Magill

16 and pronounced as under:

“The Court must first ascertain all the

circumstances which have a bearing on the

suggestion that the judge was biased, it must then

ask whether those circumstances would lead to a

fair minded and informed observer to conclude that

there was a real possibility that the Tribunal was

biased.”

15

R v. Gough, 1993 AC 646

16

(2002) 1 All ER 465

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27. Indian Courts have consistently adopted the ‘real likelihood’

test to determine bias

17. In a recent decision in Central

Organisation for Railway Electrification v. ECI SPIC SMO MCML

(JV) A Joint Venture Co.

18, a constitution bench of this Court

speaking through DY Chandrachud CJ(of which one of us was

a member), summarised the Indian position thus:

“Although there have been vacillations about the test

in England, the Indian courts have been largely

consistent in their approach by applying the test of real

likelihood of bias or reasonable apprehension of bias.

Recently, the court has used the real danger of bias

test. However, the above discussion shows that there

is no significant difference between the real danger of

bias test and the real possibility of bias test if the

question of bias is inferred from the perspective of a

reasonable or fair-minded person.”

28. Turning now to the facts of the present case, let us first

examine whether the selection can be set aside if there are

circumstances which would give rise to a reasonable likelihood

of bias from the perspective of a fair-minded person:

(i) The resolution for recusal, passed unanimously by the

Janpad Panchayat would be a relevant and an important

factor that reflects on the efforts to ensure impartiality in

17

Manak Lal v Dr. Prem Chand Singhvi 1957 SCC OnLine SC 10; Ranjit

Thakur v. Union of India (1987) 4 SCC 611; Rattan Lal Sharma v. Managing

Committee, Dr. Hari Ram (Co-Education) Higher Secondary School, (1993) 4 SCC

10; S Parthasarathi v. State of AP (1974) 3 SCC 459; SK Golap and others v Bhuban

Chandra Panda 1990 SCC OnLine Cal 264; GN Nayak v Goa University (2002) 2 SCC

712

18

2024 SCC OnLine SC 3219

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the selection process. The resolution mandated that

members who had close relatives among the candidates

would recuse themselves from the interview process, with

their responsibilities being delegated to the Chief

Executive Officer. In this manner, the Panchayat

addressed the concern and perception of bias in the mind

of a fair-minded observer. Recusal is an acceptable

mechanism and serves to eliminate any reasonable

likelihood of bias. It was however argued that the counter

affidavit filed by the Chief Executive Officer, Janpad

Panchayat, attaching the certificate given by the

Sarpanch of the Panchayat, acknowledges the

relationship of the selected/appointed candidates with

the members of selection committee giving rise to a

reasonable conclusion of bias. However, when the

concerned person has recused and did not award any

marks, it is difficult for us to accept a contention on a

so-called relative, influencing the selection.

(ii) The statutory definition of ‘relative’, as per the

Adhiniyam,1993 was not specifically adverted to by the

adjudicatory forums. This was an important omission as

few candidates do not fall within the scope of this

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definition of ‘relative’. Thus, the challenge of bias gets

diluted further.

(iii) It has also been argued that marks obtained by the

Complainant in the interview was more than the marks

obtained by the appellants. These facts could have been

demonstrated by the appellants (selectees) before the

Collector, if they were arrayed as the affected party and

opportunity of hearing was provided to them.

29. In a scenario such as this where the members did not

participate in the interview, a reasonable likelihood of bias in

our opinion cannot reasonably be inferred. While it is true that

actual bias need not be proved, this appears to be a case of

allegation of bias without any foundational footing. We must

also be mindful of the fact that the absence of opportunity of

hearing at the initial stage, has prevented the selectee to show

that no relative had influenced their selection. It also disables

this Court to examine the issue holistically to conclusively

determine bias.

30. It must also be emphasized that the nemo judex rule is subject

to the rule of necessity and yields to it

19. In J Mohapatra v State

of Orissa

20, the Court recognized that the doctrine of necessity

19

Union of India v Tulsiram Patel, (1985) 3 SCC 398; Swadesh Cotton Mills v Union

of India, (1981) 1 SCC 664

20

(1984) 4 SCC 103

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serves as an exception to the rule against bias. In a matter like

this, the doctrine of necessity would also be squarely attracted

since the statute explicitly mandates the composition of the

selection Committee, as outlined in Schedule II of the Rules.

The doctrine of necessity recognizes that decision-making

bodies need to function even in circumstances where potential

conflicts of interests may arise. Here as earlier noted, the

concerned members recused and did not award any marks. It

must however be borne in mind that the doctrine of necessity

is an exception and must be applied bearing in mind the

circumstances in a given case. The size of the jurisdiction must

also be taken into account for the application of the doctrine of

necessity. In this regard, Forsyth and Wade

21 have noted that

in small jurisdictions, qualified persons may be few in number

and likely to be known to the parties making the ‘fair minded

and informed observer’ test impractical. The doctrine of

necessity is where such considerations of size should be

considered rather than in the distortion of the test.

31. The assumption of impartiality must not also be an abstract

analysis but should equally consider the contextual

background, for the application of the doctrine of necessity.

This is a selection at a village level where it is very likely, that

21

H. W. R. Wade, Administrative Law (5

th Edition)

22 of 44

people involved would know each other. In Charanjit Singh v

Harinder Sharma

22, a public interest action was filed

challenging the selection of clerks, firemen, drivers, peons and

instructors for the Municipal Council in Mansa, a small town

in Punjab by a selection committee which had relatives of some

of the selectees on it. The High Court had quashed the decision

but the Supreme Court noted that in a small town like Mansa,

it would be difficult to constitute a Selection Committee of total

strangers. The relative of some candidate or the other is bound

to find a place on the Committee. Therefore, the Court is

required to see whether the prescribed balancing mechanism

was followed when a relative of the member of the Selection

Committee was being considered. The Rules required that

when such a candidate appeared, the concerned selection

committee member should recuse from the proceedings and

such a candidate could only be appointed after obtaining the

approval of the Regional Deputy Director, Local Government.

This was seen as an acceptable mode to rule out bias in

selection or selections being influenced by a relative.

32. Reliance has been placed on the landmark decision in

Kraipak(supra) that significantly expanded the scope of judicial

review of administrative decisions. This ruling was cited in

22

(2002) 9 SCC 732

23 of 44

Javid Rasool Bhat v. State of Jammu & Kashmir

23 where the

Court distinguished Kraipak(supra) as under:

“Great reliance was placed by the learned counsel on A.K.

Kraipak & Ors. V. Union of India on the question of natural

justice. We do not think that the case is of any assistance

to the petitioners. It was a case where one of the persons,

who sat as member of the Selection Board, was himself one

of the persons to be considered for selection. He participated

in the deliberations of the Selection Board when the clams

of his rivals were considered. He participated in the

decisions relating to the orders of preference and seniority.

He participated at every stage in the deliberations of the

Selection Board and at every stage there was a conflict

between his interest and duty. The court had no hesitation

coming to the conclusion that there was a reasonable

likelihood of ibis and therefore, there was a violation of the

principles of natural justice. In the case before us, the

Principal of the Medical College, Srinagar, dissociated

himself from the written test and did not participate in the

proceedings when his daughter was interviewed. When the

other candidates were interviewed, he did not know the

marks obtained either by his daughter or by any of the

candidates. There was no occasion to suspect his bona fides

even remotely. There was not even a suspicion of bias, leave

alone a reasonable likelihood of bias. There was no violation

of the principals of natural justice.”

33. A five-judge constitution bench of this Court in Ashok Kumar

Yadav v State of Haryana

24 endorsed the decision in Javed

Rasool(supra) and held that when a near relative of a member

of the Public Service Commission is a member of the Selection

Committee, it will be enough if the concerned member desists

from interviewing his relation. He should withdraw from the

committee when his relative appears for the interview and he

23

(1984) 2 SCC 682

24

(1985) 4 SCC 417

24 of 44

should not participate in discussion in regards to the merit of

the candidate and even the marks should not be disclosed to

the concerned member.

34. Similarly, in Jaswant Singh Nerwal v State of Punjab

25, the

father of one of the selected candidates was in the selection

committee conducting the interview. However, he did not

participate in the deliberation when his son appeared for viva

voce. It was held therein that selection was thus not vitiated.

35. Guided by the above ratios, on facts, this clearly appears to be

a case of mere suspicion of bias particularly on account of the

fact that the Janpad Panchayat unanimously passed a

resolution for recusal of the concerned member. It must also

be borne in mind that rule against bias is itself considered as

a ground for recusal. The selectees were not arrayed and they

couldn’t contest the selection before the Collector, in the

absence of a complete picture on the process, it is all the more

difficult to deduce that there was a reasonable likelihood of

bias. In light of the aforesaid reasons, our conclusion in this

matter is that the selection is not vitiated on account of

violation of the nemo judex rule.

ISSUE B

25

1991 Supp (1) SCC 313

25 of 44

36. This brings us to the second limb of the principle of natural

justice i.e. audi alteram partem and whether the demonstration

of prejudice is mandatory for raising a claim of violation of right

of hearing. The principle of audi alteram partem lies at the very

heart of procedural fairness, ensuring that no one is

condemned or adversely affected, without being given an

opportunity to present their case. The decision in Ridge v

Baldwin

26 is regarded as a significant landmark decision in

British administrative law and is often referred to as a magna

carta of natural justice. This decision has resonated deeply in

the Indian legal context where natural justice principles are

firmly entrenched with constitutional guarantees.

37. In Mohinder Singh Gill v. Chief Election Commr

27 (for short

‘Mohinder Gill’), this Court observed that:

“Today in our jurisprudence, the advances made by

natural justice far exceed old frontiers and if judicial

creativity belights penumbral areas, it is only improving

the quality of government by injecting fair play into its

wheels.. law lives not in a world of abstractions but in a

cosmos of concreteness and to give up something good

must be limited to extreme cases. If to condemn

unheard is wrong, it is wrong except where it is

overborne by social necessity.”

38. In Swadeshi Cotton Mills v. Union of India

28, this Court held:

“this rule of fair play must not be jettisoned save in very

exceptional circumstances where compulsive necessity

26

[1964] AC 40

27

(1978) 1 SCC 405

28

(1981) 1 SCC 664

26 of 44

so demands. The Court must make every effort to

salvage this cardinal rule to the maximum extent

possible, with situational modifications.”

39. Justice Bhagwati in Maneka Gandhi v Union of India

29,

described natural justice as a profound ‘humanising principle’

designed to imbue the law with fairness and ensure justice.

This principle has garnered widespread recognition across

democratic societies and has evolved into a universally

accepted rule, influencing areas of administrative decision-

making.

40. Wade and Forsyth

30 discuss the essence of good and

considerate administration as under:

“Judges are naturally inclined to use their discretion

when a plea of natural justice is used as the last

refuge of a claimant with a bad case. But that should

not be allowed to weaken the the basic principle that

fair procedure comes first, and that it is only after

hearing both sides that merits can be properly

considered. In the case of a tribunal which must

decide according to, it may be justifiable to disregard

a breach of natural justice where the demerits of the

claim are such that it would in any case be hopeless.

But in the case of a discretionary administrative

decision, such as dismissal of a teacher or expulsion

of a student, hearing their case will often soften the

heart of the authority and alter their decision, even

though it is clear from the outset that punitive action

would be justified. This is the essence of a good and

considerate administration, and the law should take

care to preserve it.”

29

(1978) 1 SCC 248

30

H W R Wade and C F Forsyth, Administrative Law (Oxford University Press, 11th

ed, 2014)

27 of 44

41. The opportunity of hearing is considered so fundamental to any

civilised legal system that the courts have read the principles

of natural justice into an enactment to save it from being

declared unconstitutional on procedural grounds

31.

42. It has been argued before us that if the failure to provide

hearing does not cause prejudice, observing the principle of

natural justice may not be necessary. In this context, a three

judge bench of this Court in SL Kapoor v Jagmohan

32 speaking

through Justice Chinappa Reddy considered such arguments

to be ‘pernicious’ and held that ‘the non-observance of natural

justice is itself prejudice to any man and proof of prejudice

independently of proof of denial of natural justice is

unnecessary’ . The Supreme Court, however, has drawn out an

exception where ‘on admitted or indisputable facts only one

conclusion is possible, and under the law, only one penalty is

permissible, then the Court may not compel the observance of

natural justice’

33.

43. Professor IP Massey

34 has commented on this shift as under:

“Before the decision of the Highest Court in SL Kapoor v

Jagmohan, the rule was that the principles of natural

justice shall apply only when the an administrative action

has caused some prejudice to the person, meaning thereby

that he must have suffered some ‘civil consequences’.

31

Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545)

32

(1980) 4 SCC 379

33

Swadeshi Cotton Mills v Union of India (1981) 1 SCC 664; Aligarh Muslim

University v Mansoor Ali Khan (200) 7 SCC 529

34

I.P. Massey, Administrative Law (8

th Edition,2012)

28 of 44

Therefore, the person had to show something extra in

order to prove ‘prejudice’ or civil consequences. This

approach had stultified the growth of administrative law

within an area of highly practical significance. It is

gratifying that in Jagmohan, the Court took a bold step in

holding that a separate showing of prejudice is not

necessary. The non-observance of natural justice is in

itself prejudice caused. However, merely because facts are

admitted or are undisputable it does not follow that the

principles of natural justice need not be observed.”

44. In Bank of Patiala v SK Sharma

35, the Supreme Court observed

that where an enquiry is not convened by any statutory

provision and the only obligation of the administrative

authority is to observe the principles of natural justice, the

Court/tribunal should make a distinction between a total

violation of the rule of fair hearing and violation of the facet of

that rule. In other words, a distinction must be made between

‘no opportunity’ or ‘no adequate opportunity’. In the case of the

former, the order passed would undoubtedly be invalid and the

authority may be asked to conduct proceedings afresh

according to the rule of fair hearing. But in the latter case, the

effect of violation of a facet of the rule of fair hearing has to be

examined from the standpoint of prejudice.

45. In Dharampal Satyapal Ltd. v. Dy. Comm. Of Central Excise,

Gauhati and Ors.

36, this Court dealt with the prejudice question

as under:

35

(1996) 3 SCC 364

36

(2015) 8 SCC 519

29 of 44

“42. So far so good. However, an important question

posed by Mr Sorabjee is as to whether it is open to the

authority, which has to take a decision, to dispense

with the requirement of the principles of natural justice

on the ground that affording such an opportunity will

not make any difference? To put it otherwise, can the

administrative authority dispense with the

requirement of issuing notice by itself deciding that no

prejudice will be caused to the person against whom

the action is contemplated? Answer has to be in the

negative. It is not permissible for the authority to jump

over the compliance of the principles of natural justice

on the ground that even if hearing had been provided

it would have served no useful purpose. The

opportunity of hearing will serve the purpose or not has

to be considered at a later stage and such things

cannot be presumed by the authority. This was so held

by the English Court way back in the year 1943 in

General Medical Council v. Spackman [1943 AC 627].

This Court also spoke in the same language in Board

of High School and Intermediate Education v. Chitra

Srivastava [(1970) 1 SCC 121]……”

46. In a more recent decision in State of UP v Sudhir Kumar Singh

37,

the position of law was summarised as under:

“(1) Natural justice is a flexible tool in the hands of the

judiciary to reach out in fit cases to remedy injustice. The

breach of the audi alteram partem rule cannot by itself,

without more, lead to the conclusion that prejudice is

thereby caused.

(2) Where procedural and/or substantive provisions of

law embody the principles of natural justice, their

infraction per se does not lead to invalidity of the orders

passed. Here again, prejudice must be caused to the

litigant, except in the case of a mandatory provision of

law which is conceived not only in individual interest, but

also in public interest.

(3) No prejudice is caused to the person complaining of

the breach of natural justice where such person does not

dispute the case against him or it. This can happen by

reason of estoppel, acquiescence, waiver and by way of

non-challenge or non-denial or admission of facts, in

cases in which the Court finds on facts that no real

prejudice can therefore be said to have been caused to

the person complaining of the breach of natural justice.

37

(2021) 19 SCC 706

30 of 44

(4) In cases where facts can be stated to be admitted or

indisputable, and only one conclusion is possible, the

Court does not pass futile orders of setting aside or

remand when there is, in fact, no prejudice caused. This

conclusion must be drawn by the Court on an appraisal

of the facts of a case, and not by the authority who denies

natural justice to a person.

(5) The “prejudice” exception must be more than a mere

apprehension or even a reasonable suspicion of a litigant.

It should exist as a matter of fact, or be based upon a

definite inference of likelihood of prejudice flowing from

the non-observance of natural justice.”

47. The aforementioned principles on the ‘prejudice exception’

must not be however be understood as infringing upon the core

of the principle of audi alteram partem. In this regard, the

constitutionalisation of administrative law and the doctrinal

shifts spearheaded in Maneka Gandhi(supra) were succinctly

observed in a recent judgment in Madhyamam Broadcasting

Ltd. v. Union of India

38, as under:

“55.1.Firstly, procedural fairness was no longer viewed

merely as a means to secure a just outcome but a

requirement that holds an inherent value in itself. In view

of this shift, the courts are now precluded from solely

assessing procedural infringements based on whether

the procedure would have prejudiced the outcome of

the case. [S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379;

“The non-observance of natural justice is itself prejudice

to any man and proof of prejudice independently of proof

of denial of natural justice is unnecessary; also

see Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC

664 : AIR 1981 SC 818] Instead, the courts would have

to decide if the procedure that was followed infringed

upon the right to a fair and reasonable procedure,

independent of the outcome. In compliance with this line

of thought, the courts have read the principles of natural

justice into an enactment to save it from being declared

unconstitutional on procedural grounds. [ Olga

38

(2023) 13 SCC 401

31 of 44

Tellis v. Bombay Municipal Corpn. , (1985) 3 SCC

545; C.B. Gautam v. Union of India, (1993) 1 SCC

78; Sahara India (Firm) (1) v. CIT, (2008) 14 SCC

151; Kesar Enterprises Ltd. v. State of U.P., (2011) 13

SCC 733]

55.2. Secondly, natural justice principles breathe

reasonableness into the procedure. Responding to the

argument that the principles of natural justice are not

static but are capable of being moulded to the

circumstances, it was held that the core of natural justice

guarantees a reasonable procedure which is a

constitutional requirement entrenched in Articles 14, 19

and 21. The facet of audi alteram partem encompasses

the components of notice, contents of the notice, reports

of inquiry, and materials that are available for perusal.

While situational modifications are permissible, the rules

of natural justice cannot be modified to suit the needs of

the situation to such an extent that the core of the

principle is abrogated because it is the core that infuses

procedural reasonableness. The burden is on the

applicant to prove that the procedure that was followed

(or not followed) by the adjudicating authority, in effect,

infringes upon the core of the right to a fair and

reasonable hearing. [See para 12 of Bhagwati, J.'s

judgment in Maneka Gandhi v. Union of India, (1978) 1

SCC 248.]”

48. Pertinently on the issue, a five judge bench of this Court in

CORE(supra) described the object of observing the principles of

natural justice as under:

“80. …The object of observing the principles of

natural justice is to ensure that “every person whose

rights are going to be affected by the proposed action

gets a fair hearing.” The non-observance of natural

justice is itself a prejudice to any person who has

been denied justice depending upon the facts and

circumstances of each case. The principle of

procedural fairness is rooted in the principles of the

rule of law and good governance. In Madhyamam

Broadcasting Limited v. Union of India(2023) 13 SCC

401 , this Court held that the requirement of

procedural fairness “holds an inherent value in itself.”

32 of 44

49. Returning to the facts of the present case, the Collector records

in his order that even though the selected ‘relatives’ have not

been made parties, ‘it is proved that the appointment of these

relatives could not be deemed to be made according to the

scheme’ and hence it is not necessary to provide an opportunity

of hearing. This was reiterated by the Commissioner in his

Revisional order. The Division Bench in its order also notes that

it was imperative to implead the affected parties. As noted by

Justice Vishwanathan, Respondent No. 4(Archana Mishra)

ought to have impleaded the candidates who were selected and

appointed and even if she didn’t array the affected parties, the

Collector should have given an order for impleadment of the

selectees. The facts here are not such where only one position

emerges. It is a case of disputed facts. Significantly the legal

effect of recusal was not examined in the orders and it is

difficult to speculate what the conclusion of the Collector and

the Revisional authority would have been, if they were posted

of the recusal resolution.

50. Moreover, the question about whether prejudice was caused

due to non-observance of the principles of natural justice could

not be raised where such principles are incorporated into

33 of 44

statutory procedure

39. In this regard, Rule 9 is crucial and

reads as under:

“9. Power of appellate or revisional

authority.- The appellate or revisional

authority after giving an opportunity to

parties to be heard and after such further

enquiry, if any, as it may deem necessary

subject to the provisions of the Act and the rules

made thereunder, may confirm, vary or set aside

the order or decision appealed against.”

51. Considering the above, Justice Vishwanathan rightly notes as

under:

“At least at the stage when the Collector identified all

the 14 names, Rule 9 of the A&R Rules, ought to

have been complied with and notices ought to have

been issued giving an opportunity to the selected

candidates to set out their version and thereafter

hold such enquiry as the Collector may deem

necessary. This was also not done. This is all the

more when only the appointment of the 14

candidates of the 249 appointees/candidates were

set aside on the ground that 33 they were relatives

and it was not a case of setting aside of the entire

selection.

It is well settled that in service matters when an

unsuccessful candidate challenges the selection

process, in a case like the present where the specific

grievance was against 14 candidates under the

category of relatives and when the overall figure was

only 249, at least the candidates against whom

specific allegations were made and who were

identified ought to have been given notices and made

a party. This Court has, even in cases where the

selected candidates were too large, unlike in the

present case, held that even while adjudicating the

writ petitions at least some of the selected

candidates ought to be impleaded even it is in a

representative capacity. It has also been held that in

service jurisprudence, if an unsuccessful candidate

challenges the selection process the selected

candidates ought to be impleaded. [See J.S. Yadav

vs. State of Uttar Pradesh and Another, (2011) 6 SCC

39

State Govt. Houseless Harijan Employees Association v State of Karnataka (2001)

1 SCC 610

34 of 44

570 (para 31) and Prabodh Verma and Others vs.

State of Uttar Pradesh and Others, (1984) 4 SCC 251

(para 28) and Ranjan Kumar and Others vs. State of

Bihar and Others, 2014:INSC:276 = (2014) 16 SCC

187 (paras 4,5,8,9 & 13)] This is not a case where

the allegation was that the mischief was so

widespread and all pervasive affecting the result of

the selection in a manner as to make it difficult to

sift the grain from the chaff. It could not be said and

it is not even the case of the State that it was not

possible to segregate the allegedly tainted

candidates from the untainted candidates. [See

Union of India and Others vs. G. Chakradhar, (2002)

5 SCC 146 (paras 7 & 8), Abhishek Kumar Singh vs.

G. Pattanaik and Others, 2021:INSC:305 = (2021) 7

SCC 613 (para 72).”

52. In a catena of cases, significantly a clear distinction has been

crafted by this Court between the service of notice and the

requirement of fair hearing

40. The respondents rely on SK

Sharma(supra) which highlights the circumstances when non-

adherence to the principle of natural justice, will not be fatal.

It must however be borne in mind that S.K. Sharma (supra) was

not a case of total denial of opportunity unlike in the present

case. In fact, as Justice Vishwanathan rightly notes in S.K.

Sharma (supra), after noticing the classic case of Ridge vs.

Baldwin

41 , this Court expressly records that where there is

a total violation of principles of natural justice, the violation

would be of a fundamental nature. Therefore, SK

Sarma(supra) did not deal with the violation of the first limb of

40

East India Commercial Co. Ltd. v. Collector of Customs AIR 1962 SC 1893; Uma

Nath Pandey and Ors. v state of UP (2009) 12 SCC 40

41

1964 AC 40

35 of 44

Audi Alteram Partem principles, a situation of non-service of

notice. The judgment in fact explicitly records that “a

distinction ought to be made between violation of the

principle of natural justice, audi alteram partem, as such,

and violation of a facet of the said principle. In other words,

distinction between “no notice” “no hearing” and “no

adequate hearing” or to put it in different words, “no

opportunity” and “no adequate opportunity”, was

highlighted. The judgement in SK Sharma(supra) is therefore

inapplicable to the present matter which is a case of no notice

whatsoever.

53. The statutory provision also clearly provided for an opportunity

of hearing:

“40. Removal of office-bearers of Panchayat- (1) The

State Government or the prescribed authority

may after such enquiry as it may deem fit to make at

any time, remove an office-bearer-

(a) if he has been guilty of misconduct in the discharge

of his duties; or

(b) if his continuance in office is undesirable in the

interest of the public:

Provided that no person shall be removed unless he

has been given an opportunity to show cause why

he should not be removed from his office.”

[emphasis supplied]

54. In the absence of notice, the breach strikes at the fundamental

core of procedural fairness, rendering the decision invalid

36 of 44

unless exceptional circumstances justify such deviation. The

vitiation of selection was not only a breach of the principles of

natural justice but also contrary to the express statutory

provision that required for an opportunity to show cause and

an opportunity to provide self-defence. The prejudice theory

must be understood as an exception to the general rule and

cannot therefore be the norm. In view of the foregoing, a gross

violation of the principle of audi alteram partem is noticed in

the present case.

ISSUE C

55. The next issue that falls for our consideration is whether the

denial of natural justice at the initial stage can be cured by an

appellate body. The earliest decision on the issue was delivered

by the High Court of Australia in Australian Workers’ Union v

Bowen

42. Bowen contested his dismissal by the General

Council of the Union, claiming bias because the Union

Secretary acted as both prosecutor and judge. While the

Commonwealth Court of Conciliation and Arbitration ruled in

his favour, the decision was overturned on appeal. The

appellate court held that the Secretary’s role did not violate the

rule against bias and, even if it had, any flaw in the original

42

Australian Workers’ Union v Bowen (No. 2) (1948) 77 C.L.R. 601

37 of 44

proceedings was remedied by a fair appeal to the Annual

Conference, which Bowen did not dispute.

56. Thereafter, in a case involving a trade union dispute, Lord

Denning in Annamunthodo v Oilfield Workers’ Trade Union

43,

ruled that a flaw in natural justice during the initial hearing

could not be remedied by an appeal.

57. Leary v. National Union of Vehicle Builders

44 (for short “Leary”)

is a leading authority on the point that a failure of natural

justice at the initial stage cannot be cured at the appellate

stage. The case involved the plaintiff’s expulsion by a Branch

Committee of his trade union, at a meeting about which he was

unaware. He approached the Appeals Council for relief against

the order of the branch Committee, which conducted a full

rehearing but upheld the Branch Committee’s decision. The

plaintiff then filed a writ, seeking declarations that his

expulsion from union membership as well as his position as

area organizer was unlawful, invalid, and void. Megarry J

framed the question thus:

“if a man has never had a fair trial by the appropriate

trial body, is it open to an appellate body to discard its

appellate function and itself give the man the fair trial

that he has never had?. If the rules and the law combine

to give the member the right to a fair trial and the right

of appeal, why should he be told that he ought to be

satisfied with an unjust trial and a fair appeal?... Even

if the appeal is treated as a hearing de novo, the member

43

[1961] AC 945 (PC)

44

(1970) 2 All ER 713

38 of 44

is being stripped of his right to appeal to another body

from the effective decision to expel him'

58. It was held that the proper course in such a situation would be

to hear the matter afresh:

“If one accepts the contention that a defect of natural

justice in the trial body can be cured by the presence

of natural justice in the appellate body, this has the

result of depriving the member of his right of appeal

from the expelling body. If the rules and the law

combine to give the member the right to a fair trial and

the right of appeal, why should he be told that he ought

to be satisfied with an unjust trial and a fair appeal?

Even if the appeal is treated as a hearing de novo, the

member is being stripped of his right to appeal to

another body from the effective decision to expel him. I

cannot think that natural justice is satisfied by a

process whereby an unfair trial, though not resulting

in a valid expulsion, will nevertheless have the effect of

depriving the member of a right of appeal when a valid

decision to expel him is subsequently made. Such a

deprivation is a powerful result to be achieved by what

in law is a mere nullity; and it is no mere triviality that

might be justified on the ground that natural justice

does not mean perfect justice. As a general rule, at all

events, I hold that a failure of natural justice in the trial

body cannot be cured by a sufficiency of natural justice

in an appellate body.”

59. In Calvin v Carr

45(for short “Calvin”), the Judicial Committee of

the Privy Council only gave a qualified endorsement to the

Leary principle. In Lloyd v McMahon

46, Lord Templeman

considered the Calvin principle but commented that instead of

laying down general principles, the question arising in that

case must be answered by considering the particular statutory

45

(1979) 2 WLR 755

46

(1987) 1 AC 625

39 of 44

provisions applicable therein. In that case, a distinction was

drawn between full appeals where all the evidence may be

examined and limited appeals on questions of law only or where

the appellate body does not investigate findings of fact.

60. Indian courts have applied the Leary principle as a rule

47 and

the Calvin principle as an exception

48. This is more so due to

the institutional structure as the writ court does not usually go

into facts and judicial review of administrative action is limited

to the decision-making process and not the decision itself. In

our view, the provision for an appeal should not rest on the

assumption that the appellate body is infallible. When one

party is denied the opportunity to present their case, the initial

decision fails to provide meaningful guidance to the appellate

authority, in achieving a fair and just resolution.

61. In this context, Professor Wade

49 has observed as under:

“In principle, there ought to be an observance of

natural justice at both stages… If natural justice is

violated at the first stage , the right to appeal is not

so much a true right to appeal as a corrected initial

hearing: instead of fair trial followed by appeal., the

47

Institute of Chartered Accountants v. L. K. Ratna (1986) 4 SCC 537; Fareed

Ahmed v Ahmedabad Municipality AIR 1976 SC 2095; Shri Mandir Sita Ramji v

Government of Delhi (1975) 4 SCC 298; Mysore SRT Corp v Mirza Khasim AIR 1977

SC 747; Laxmidhar v State of Orissa AIR 1974 Ori 127; Kashiram Dalmia v State

AIR 1978 Pat 265; G Rajalakshmi v Appellate Authority AIR 1980 AP 100;

Serajuddin Co. v State of Orissa AIR 1974 Cal 296

48

Charan Lal Sahu v Union of India (1990) 1 SCC 613; Jayantilal Ratanchand Shah

v Reserve Bank of India (1996) 9 SCC 650; United Planters’ Association of Southern

India v KG Sangameswaran (1997) 4 SCC 741

49

H. W. R. Wade, Administrative Law ((Oxford: Clarendon Press 1982)

40 of 44

procedure is reduced to an unfair trial followed by fair

trial”

62. Professor Laurence Tribe

50 had pertinently observed that

whatever the outcome, a valued human interaction in which

the affected person experiences atleast the satisfaction of

participating in the decision that vitally concerns her is of

utmost importance:

“Both from the right to be heard and the right to be

told why, are analytically distinct from the right to

secre a different outcome; these rights to

interchange express the elementary idea that to be

a person, rather than a thing, is at atleast to be

consulted about what is done with one.”

63. In Institute of Chartered Accountants v. L. K. Ratna

51, the Indian

Supreme Court endorsed the position adopted by Megarry J.

Rejecting the argument that an appeal to the High Court under

Section 22A of the Chartered Accountants Act, 1949, could

rectify the initial defect, Pathak J. declared the order null, void,

and of no effect. This ruling was consistent with two earlier

Supreme Court decisions in State of U.P. v. Mohammed Nooh

52

and Mysore State Road Transport Corporation v. Mirja Khasim

53,

both of which established that an appeal cannot validate what

is clearly a nullity.

50

Lawrence H. Tribe, ‘American Constitutional Law’ ((The Foundation Press 1978)

51

(1986) 4 SCC 537

52

1958 SCR 595

53

(1977) 2 SCC 457

41 of 44

64. The Supreme Court has invoked the Calvin principle only in

exceptional circumstances. For instance, in Charan Lal Sahu v

Union of India

54 in a case concerning a challenge to the validity

of the Bhopal Gas Leak Disaster (Processing of Claims) Act,

1985, the Court applied the Calvin principle, given the fact that

the settlement fund was held to be sufficient to meet the needs

of just compensation to the victims of the Bhopal gas leak

tragedy, it was held that the grievance on the score of not

hearing the victims first would not really survive. It recorded

that “to do a great right” after all it is permissible sometimes

“to do a little wrong”.

65. What is also of fundamental importance in the present case is

that Rule 5(b) clearly provided that application for revision

could be only entertained on the point of law and not on facts:

“(b) An application for revision by any party shall

only be entertained if it is on the point of law and

not on facts.”

66. Additionally, a perusal of the order(s) of the Collector and

Commissioner in Revision would also show that they are

practically identical. An ineffective hearing at the initial stage

therefore taints the entire decision-making process leading to

a cascade of flawed orders at subsequent stages. Providing a

54

(1990) 1 SCC 613

42 of 44

hearing to the affected individual, minimizes the risk of

administrative authorities making decisions in ignorance of

facts or other relevant circumstances, as it allows all pertinent

issues to be brought to light. This process not only aids the

administration in arriving at a correct decisions but also

enables courts to more effectively review such actions. The

primary purpose of natural justice is to assist the

administration in reaching sound decisions at the outset,

reducing the likelihood of decisions being overturned later. Its

significance lies in fostering fair and well-informed decision-

making at the very first instance.

67. Following the above discussion, it must be concluded that a

defect at the initial stage cannot generally be cured at the

appellate stage. Even in cases where a ‘full jurisdiction’ may be

available at the appellate stage, the Courts must have the

discretion to relegate it to the original stage for an opportunity

of hearing. Therefore, the ex-parte decision to set aside the

appellants selection stands vitiated.

V. CONCLUSION

68. The principle of audi alteram partem is the cornerstone of

justice, ensuring that no person is condemned unheard. This

principle transforms justice from a mere technical formality

into a humane pursuit. It safeguards against arbitrary

43 of 44

decision-making, and is needed more so in cases of unequal

power dynamics

55.

69. An allegation of bias, can only be proved if facts are established

after giving an opportunity of hearing. This process requires a

fair and transparent procedure in which the concerned parties

are given an adequate opportunity to present their case. Such

an opportunity allows the accused party or the affected

individuals to respond to the allegations, provide evidence, and

clarify any misgivings regarding the decision-making process.

Therefore, for an allegation of bias to be proved, it is imperative

that the procedural safeguards of a fair hearing are observed

allowing for establishment of the relevant facts.

70. In light of the foregoing, we uphold the opinion of Justice KV

Vishwanathan allowing the appeal(s) and setting aside the

judgment of the Division Bench. Resultantly, this Court is not

able to endorse the opinion rendered by Justice JK

Maheshwari.

71. Since the selection pertains to the year 1998, and the

appellants have continuously held office and performed their

duties for over twenty-five years under interim orders,

remanding the matter for a fresh inquiry would hardly be a

55

Upendra Baxi, ‘Preface: The Myth and Reality of the Indian Administrative

Law’, in IP Massey(ed) ‘Administrative Law’ (8

th edn, EBC 2012)

44 of 44

practical exercise and will be an injustice to the appointees.

The time lag can be better appreciated by bearing in mind that

one of the appellants has already superannuated.

72. The matters stand answered and allowed on the above terms.

Parties to bear their own cost.

………………..……………………..J

[HRISHIKESH ROY]

…..……..……….……………………J

[SUDHANSHU DHULIA]

..………………….…………………..J

[S.V.N. BHATTI]

NEW DELHI;

JANUARY 29, 2025