# (2005) 3 ILRA 1010

- **Citation:** (2005) 3 ILRA 1010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-04
- **Case number:** Civil Misc. Writ Petition No. 9227 of 2001
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2005-3-ilra-1010-40565
- **Pages:** 20

## Headnote

Railways Protection force rules 1987Rule-120-unauthorise
occupationpetition
during
posting
period
at
Allahabad-allowed
railway
quarter
no.37-D type-I-even after transfer from
Allahabad-not vacated-charge of penal
rent w.e.f. 13.7.93 to 24.4.01-arreaas of
rent Rs.1,20,595-recovry of Rs.1000/-
per months from the salary of petitionerheld-proper-once
the
petitioner
transferred-allotment comes to an end-if
not
vacated
nor
applied
to
the
competent authority-even before writ
Court no challenge made questing the
amount of realization of panel rentprotection
under
public
premises
(Eviction of unauthorized occupants) Act
1947 not available to the petitionernotice in writing not required-

Held: Para-8 and 9

In the present case the petitioner has
not enclosed the allotment letter by
which the residential accommodation
was allotted. It is however admitted in
the pleadings that it was allotted to him
as a member of the force by virtue of his
posting at Allahabad. Rule 120.2 of the
3 All] Sacchidanand Tiwari V.Commandant (Sr. Security Commisssioner) R.P.F. & others
1011
R.P.F. Rules, 1987 provides it to be a
condition of service of the member of
RPF
that
he
shall
vacate
the
accommodation on his transfer from that
place or on the orders to no passed by
the Security Commissioner for reasons to
be recorded in writing. The rule do not
provide for say notice or order to be
given
to
the
member
of
Railway
Protection
Force
to
vacate
the
accommodation
after
he
has
been
transferred. As soon as a person is
transferred the allotment comes to an
end and he is required to vacate the
accommodation, unless he applies and
the competent authority by an order
passed allow him to occupy the same.

Once
a
person
is
found
to
be
unauthorized occupant and does not
vacate of his own, he is required to pay
penal rent according to rules. In the
present case, apart from raising a plea
that the petitioner's family was suffering
and that no notice was given the
petitioner
has
not
challenge
the
quantum of penal rent fixed by the
respondents. In facts more than half of
the
penal
rent
had
already
been
recovered. There is no pleading tart the
penal rent is excessive or has not been
fixed in accordance with the rules.

## Text

_Characters 0–39,624 of 68,265. This is a partial read: ask again with offset=39624 for what follows._

1010 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
to Article 243-Q of the Constitution of
India.

7. From Section 12-A it further
reveals that if the said area is included in
Panchayat area, such area with effect
from the date of notification made under
proviso (proviso to article 243-Q) stand
excluded from such panchayat. Thus
specification to be an industrial township
as well as a notification under proviso to
Article 243 are condition precedents for
excluding from any panchayat area. There
is nothing on the record to come to
conclusion that the area in question has
been specified as an industrial township.
Further no notification, as stated by Chief
Standing Counsel, has been issued under
proviso to Article 343 Q by the State
Government, hence, question of exclusion
of the area from panchayat area does not
arise.

8. Merely because the Villages in
question are covered under 2-(d) does not
ipso facto exclude them from Panchayat
area. As noted above neither it has been
specified as Industrial Township nor a
notification under Article 243-Q has been
issued. The relief claimed by the writ
petitioner in the writ petition cannot be
granted.

In view of above, both the writ
petitions are dismissed. Petition
dismissed.
---------
ORIGINAL JURISDIDTION
CIVIL SIDE
DATED: ALLAHABAD 4.8.2005

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 9227 of 2001

Sacchidanand Tiwari and others

...Petitioners
Versus
Assistant Security Commissioner and
others

...Respondents

Counsel for the Petitioner:
Sri Satish Dwivedi
Sri Suresh Chandra Dwivedi

Counsel for the Respondent:
Sri Govind Saran

Railways Protection force rules 1987Rule-120-unauthorise
occupationpetition
during
posting
period
at
Allahabad-allowed
railway
quarter
no.37-D type-I-even after transfer from
Allahabad-not vacated-charge of penal
rent w.e.f. 13.7.93 to 24.4.01-arreaas of
rent Rs.1,20,595-recovry of Rs.1000/-
per months from the salary of petitionerheld-proper-once
the
petitioner
transferred-allotment comes to an end-if
not
vacated
nor
applied
to
the
competent authority-even before writ
Court no challenge made questing the
amount of realization of panel rentprotection
under
public
premises
(Eviction of unauthorized occupants) Act
1947 not available to the petitionernotice in writing not required-

Held: Para-8 and 9

In the present case the petitioner has
not enclosed the allotment letter by
which the residential accommodation
was allotted. It is however admitted in
the pleadings that it was allotted to him
as a member of the force by virtue of his
posting at Allahabad. Rule 120.2 of the
3 All] Sacchidanand Tiwari V.Commandant (Sr. Security Commisssioner) R.P.F. & others
1011
R.P.F. Rules, 1987 provides it to be a
condition of service of the member of
RPF
that
he
shall
vacate
the
accommodation on his transfer from that
place or on the orders to no passed by
the Security Commissioner for reasons to
be recorded in writing. The rule do not
provide for say notice or order to be
given
to
the
member
of
Railway
Protection
Force
to
vacate
the
accommodation
after
he
has
been
transferred. As soon as a person is
transferred the allotment comes to an
end and he is required to vacate the
accommodation, unless he applies and
the competent authority by an order
passed allow him to occupy the same.

Once
a
person
is
found
to
be
unauthorized occupant and does not
vacate of his own, he is required to pay
penal rent according to rules. In the
present case, apart from raising a plea
that the petitioner's family was suffering
and that no notice was given the
petitioner
has
not
challenge
the
quantum of penal rent fixed by the
respondents. In facts more than half of
the
penal
rent
had
already
been
recovered. There is no pleading tart the
penal rent is excessive or has not been
fixed in accordance with the rules.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Sri Satish Dwivedi counsel
for the petitioner and Sri Govind Saran
for respondents.

2. By means of this writ petition, the
petitioners has prayed for issuing a writ of
certiorari, quashing the orders, it any,
passed
by
the
respondents
after
summoning
the
same
by
which
deductions and realization of damages as
damage rent is being made from the
petitioner from his monthly salary. He has
further prayed for a writ of mandamus
restraining respondents not to deduct or
realise the damage rent for less than half
of the salary of the petitioner except
nominal charge of the accommodation
under the law and to refund the amount
which has been excessively realized from
the petitioner,

3. The facts giving rise to this
petition are that on his posting as
Constable in Railway Protection Force at
District Allahabad, the petitioner was
allotted a Railway Quarter No. 37.D
Type-1
Subedarganj,
Allahabad.
He
completed the tenure of posting at
subedarganj.
Allahabad
and
was
transferred to Company No. 49/ GMC/
Kanpur on 1.6.1993 and was spared on
17.3.1993. The petitioner did not vacate
the accommodation allotted to him, nor
made any request to continue to occupy
the accommodation. He was transferred
from Kanpur to Cash Guard at Allahabad
on 15.4.1996 and thereafter he transferred
from Cash Guard Allahabad to Cash
Guard Platoon Tundla on 14.9.1996. He
was again transferred from Cash Guard
Tundla to Allahabad on his own request
on 25.4.2001. During this entire period he
did not vacate the accommodation nor
paid penal rent in accordance with the
Rules fro allotment. It is admitted
between the parties that on hid transfer
back to Allahabad on his won request he
has been re-allotted the same quarter on
25.4.2001. The dispute in the present case
is thus confined only to the penal rent
which was payable by the petitioner from
13.7.1993 to 24.4.2001. The details of the
assessment of plenary rent have been
given in paragraph 7 of the counter
affidavit. Out of total amount of arrears of
damage rent of Rs.1.20. 595 an amount of
Rs.61.326 /- has been realise from the
petitioner and that the remaining amount
of Rs59.269 is being realised from his
1012 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
salary W.e.f. January, 2oo3 Rs1ooo/-per
month.

4. Leaned counsel for the petitioner
submits that no proceedings were take for
his
eviction
under
public
premises
(Eviction of Unauthorized Occupants)
Act. 1997 prior to the notice dated
28.2.2000 and that the petitioner was
never given an order to vacate the
accommodation. He submits that the
petitioner and his family we in great
difficulty as his wife was suffering from
serious ailment for which she was treated
in Railway Hospital and in the S.R.N.
Hospital at Allah bad.

5. A perusal of the record whose that
the respondents did not take any steps to
gets the accommodation vacated from the
petitioner.
The
respondents
started
recovering penal rent from the petitioner
after its assessment vide order dated
6.3.2000. Although it is alleged that the
petitioner had made representation there
is nothing to show that the petitioners had
requested
to
continue
into
the
accommodation prior to 16.2.2000 when
he made his first representation.

6. The Court has been called upon to
decide the rights of the petitioner to
occupy the residential accommodation
allotted to him at the place of his posting
and to consider the submission whether it
was incumbent upon the department to
give a notice to the petitioner to show
cause as to why he may not be evicted,
and further to issue show cause notice
before the penal rent was determined and
imposed upon the petitioner, and also
whether in such case the only remedy for
the department is to proceed for eviction
and determination of penal ret under . The
Public
Premises'
(Eviction
of
Unauthorized Occupants) Act, 1947.

7. Rule 120 of the Railway
Protection Force Rules, 1987 made under
Railway Protection Force Act, 1957
provide for maintenance and vacation of
the of accommodation as follow:
"120. Maintenance and vacation of
residential accommodation:
120.1.
If
any
residential
accommodation is allotted to a member of
the Force, he shall reside their subject to
such conditions and terms as may be
specified
by
he
Chief
Security
Commissioner concerned and shall be
responsible for maintaining it in a good
state.
120.2.
It shall be a condition of
his service that he shall vacate the
accommodation on his ceasing to be a
member of the Force or on his transfer
from that place or whenever an officer not
below the rank in writing, finds it
necessary and expedient for him to de so.
120.3.
If any enrolled member of
the Force who is required under sub-rule
(2) to vacate any premises fails to do so,
such superior officer may after giving
human opportunity of being heard; direct
any officer subordinate to him, with such
assistance as may be necessary, to enter
upon and open the premises and take
possession of the premises and deliver the
same to any person specified in the
order.''

8. In the present case the petitioner
has not enclosed the allotment letter by
which the residential accommodation was
allotted. It is however admitted in the
pleadings that it was allotted to him as a
member of the force by virtue of his
posting at Allahabad. Rule 120.2 of the
R.P.F. Rules, 1987 provides it to be a
3 All] Sacchidanand Tiwari V.Commandant (Sr. Security Commisssioner) R.P.F. & others
1013
condition of service of the member of
RPF
that
he
shall
vacate
the
accommodation on his transfer from that
place or on the orders to no passed by the
Security Commissioner for reasons to be
recorded in writing. The rule do not
provide for say notice or order to be given
to the member of Railway Protection
Force to vacate the accommodation after
he has been transferred. As soon as a
person is transferred the allotment comes
to an end and he is required to vacate the
accommodation, unless he applies and the
competent authority by an order passed
allow him to occupy the same. The notice
under Rule 120.3 is required to be given
where members of the Railway Protection
Force has been required by the Security
Commissioner for reasons to be recorded
in writing to vacate the accommodation.
The order at vacate accommodation to a
member of the force is required to be
given only when he does not obey the
orders of his superior officer to vacate the
accommodation. In case of transfer this
procedure is not required to be followed.
Unless a member of the Force has
requested for permission of the competent
authority Le: Security Commissioner to
continue to occupy the accommodation,
after his transfer, he has no authority to
retain the same. In such cases a person
may be evicted from the accommodation
after giving the simple notice informing
him and giving him reasonable time to
vacate the accommodation. It is not
necessary for the department to proceed
under the Public Premises (Eviction of
Unauthorized Occupation) Act as the
occupation becomes unauthorized under
Rule 120.2 of the Railway Protection
Force Rules, 1987. The burden of port of
unendorsed occupied in such cases cannot
be fixed upon the department. A member
of
the
Force
occupying
the
accommodation in pursuance of allotment
becomes an unauthorized occupant after
he fails to vacate the same on his transfer,
and in such case his occupation can only
be protected by an order of the competent
authority.

9. Once a person is found to be
unauthorized occupant and does not
vacate of his own, he is required to pay
penal rent according to rules. In the
present case, apart from raising a plea that
the petitioner's family was suffering and
that no notice was given the petitioner has
not challenge the quantum of penal rent
fixed by the respondents. In facts more
than half of the penal rent had already
been recovered. There is no pleading tart
the penal rent is excessive or has not been
fixed in accordance with the rules.

10. For the aforesaid reasons. I do
not find any good ground to interfere in
the matter. The petitioner has been
allotted the same accommodation on his
transfer back to Allahabad on 25.4.2001.
I find that the respondents have been
reasonable to the petitioner, by recovering
only Rs.1.000/- per month until the entire
dues of penal rent are recovered.

The writ petition is accordingly
dismissed with no orders as t costs.

 Petition dismissed.
---------
1014 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
ORIGINAL JURISDICATION
CIVIL SIDE
DATED: ALLAHABAD 27.10.2005

Before
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 32149 of 1996

Sanjay Singh and another ...Petitioners
Versus
States of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Sushil Tyagi
Sri Shree Prakash Singh

Counsel for the Respondents:
Sri A.S. Diwakar
S.C.

Constitution of India Art-14..16-right to
get appointment-petitioner placed in
final selected list for sending on training
for the post of lekhpal-after publication
of
final
list-on
the
basis
of
oral
complaint-another examiner appointed
who reevaluated the marks of are
candidates-petitioner not qualified-held
reduction of original marks in written
examination
in
the
garb
of
reexamination of their answer book-should
be ignored from consideration-instead of
cancellation of entire list direction issued
at declare the result of petitioner as per
original
marking
allowed
by
the
examiner within two months.

Held-Para-14 and 15

Admittedly the petitioners have secured
53 marks and 51 marks respectively in
their written examination, which were
reduced to 42 and 44 marks respectively.
Thus the subsequent reduced marks of
written test and in interview would form
the select list. However, in given facts
and circumstance of the case it would be
appropriate to direct the authorities to
redress the grievance of the petitioners
by taking into account heir original
marks secured in written examination
period to re-evaluation of their answer
books, and after adding the marks of
their interview, if it is found that their
performs on, edits comes to at par with
any last selected candidates lowest in
merit in the selection in question, in their
respective category, they shall also be
selected and sent for training of Lekhpal
forthwith without causing any further
delay in the matter but they shall not be
entitled for payment of any back wages
or other service benefits prior to their
selected and appointment .

Thus in view of aforesaid discussion and
observation the respondents are directed
to declare the result of the petitioners on
the basis of original marks allotted by
the
examiner
in
their
written
examination
and
interview
ignoring
reevaluation of their answer books and
marks allocated by another examiner.
The
Commissioners,
Meerut
Division
Meerut,
and
District
Magistrate/Collector,
Saharapur
are
directed
to
undertake
this
exercise
within a period of 2 months from the
date of production of a certified copy of
this order before them.
Case law discussed:
AIR 1987 SC-454
AIR 1985 SC-135
AIR 1991 SC-295
AIR 1992 SC-80

(Delivered by Hon'ble Sabhajeet Yadav, J.)

By this petition the petitioners have
sought relief of certiorari for quashing the
result of selection held on 11.7.96
including the select list. And a writ of
mandamus commanding the respondents
not to proceed with the final touch of the
selected candidate and to consider the
appointment of the petitioners on the
marks originally secured by them and
further
not
to give effect
to
the
appointment
and
joining
of
the
3 All] Sanjai Singh and another V. State of U.P. and others
1015
respondent's no.7 and 8 on the posts in
question.

2. The petitioners have come
forward
with
the
case
that
an
advertisement
dated
29.4.1006
was
published by the office of District
Magistrate.
(Bhoolekh
Section).
Saharanpur
for
holding
written
examination and interview for selecting
for selecting candidates to be sent for
training of Lekhpal There were as many
as total 49 vacancies which were likely to
be changed by increase or decrease in
future Being fully eligible ad qualified for
selection and appointment against the
aforesaid vacancy the petitioners have
applied
for
the
same
The
written
examination for the purpose of said
selection was held on 17th June, 1996 and
the candidates who had succeeded in the
written examination and were called for
interview by the respondents fixing date
of interview on6th July, 1996 the
petitioners have succeeded in written
examination and called for and appeared
in the interview The result of final
selection was declared after the said
written examination and interview on11th
July,1996 The petitioners name did not
find place in the final selection list. After
lapse of some times the petitioners came
to know that some manipulations have
been done in the answer books of the
petitioners on account of which they
could not succeed in the final selection
Their marks in the written examination
have been reduced so as to exclude them
from the final select list prepared in the
aforesaid selection it is further alleged
that the respondent no 6 was one of the
member of selection committee whose
two sons namely the respondents no7 and
8 were also candidates of the aforesaid
selection in the process of the aforesaid
selection the respondent no 7 has been
finally selected and sent for training
Therefore, the entire process of selection
is
vitiated
on
account
of
such
manipulations and bias. Accordingly the
select list prepared on 11.7.96 is liable to
be quashed and consequently the further
action of the respondents appointing
selected persons are also liable to be
struck down by this Court and the
petitioners are entitled for selection and to
be sent for training of Lekhpal.

3. On behalf of the respondents two
counter affidavits have been filed in the
writ petition one sworn by Sri Tabeer
Singh Additional tehsildar, Saharanpur
and
another
by
Om
Prakash
the
respondent no 6 the then District inspector
of schools, Saharanpur wherein in para6
and 11 of the counter affidavit sworn by
Tabeer Singh Addl. Tehsildar, Saharanpur
almost complete reply has been given
Virtually same and similar reply has also
been given in Para 6.7.8 and 11 of the
counter affidavit sworn by Om Prakash
respondent no 6 For ready reference the
averments
made
in
the
aforesaid
paragraphs of counter affidavit are being
reproduced as under:

"6. That the contents of paragraph
no15 and 16 of the writ petition are not
admitted as stated in reply it is necessary
to submit here that certain oral complaints
have been made by the candidates
appearing in the test regarding valuation
of marks and regarding appointment of
examiner, therefore, selection committee
after looking into complaints, to go
through the marks allotted by the
examiners. The members of selection
committee had gone through the certain
copies of written test have been wrongly
examined, therefore, a decision was taken
1016 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
by the committee to appoint another
examiner for looking into the answer
books. The Principal of the Government
Industrial Training Institute (Sersawa),
Saharanpur was appointed as examiner
and he had examined all the answer books
of280 candidates who had been called for
interview After re-examination of answer
books, the Principal fount that marks
allotted to the candidates of Roll No.2.4
and 5 are not correct therefore, correct
marks were allotted by the Principal and
accordingly earlier marks allotted to the
petitioners have bee changed.
7. That the contents of paragraph
no.17 of the writ petition are completely
incorrect hence denied. As stated above,
neither the respondent no 4 nor any
member of interview board corrected the
marks in answer books of the petitioners
allotted to them by earlier examiner. After
coming to know that certain answer books
have not been correctly examined by
examiner, therefore. A decision was taken
for ex- examination of answer books and
accordingly
for
that
purposes,
the
Principal Government industrial Training
Institute Sarawak, District Saharanpur
was appointed as examiner and he had
examined the answer books and corrected
the marks accordingly.
9. That the content of Para 19 of
the write petition are writ petition are not
admitted as stated it is relevant to point
out here that after written test marks
allotted by examiners on answer books
was feeded in computer for purposes of
maintaining
a
list
for
calling
the
candidates for interview. As per marks
allotted by earlier examiner a list was
prepared and candidates were called for
interview accordingly. As stated above
after
interview,
on
the
basis
of
complaints, answer book of the candidates
appeared in interview were directed to reexamined and after re- examination as
stated above certain corrections were
made and final list was corrected on the
basis of corrected marled.
11. That the contents of Para 21of
the write petition are completely incorrect
hence denied .The answering respondent
was nominated as member of selection
committee by order dated 4.7.1996 passed
by district Magistrate. The respondent no
.7 and 8 are son of the answering. It is
relevant to submit here that respondent no
8 was not succeeded even in written test
therefore;
question
does
not
arise
appearing before selection committee .So
far as the respondent no.7 is concerned he
is meritorious student .The respondent No
.7 qualified the written test therefore he
appeared before selection committee .It is
necessary to mention here that at the time
of interview of respondent no. 7, the
answering respondent was not present in
selection committee. Only 3 members
were present at the time of interview of
the respondent no.7.the marks allotted to
respondent no.7 was only by 3members of
selection committee and average was also
concluded from the marks allotted by the
three members of selection committee. A
chart prepared by selection committee
shall be produced at the time of hearing.
The allegation leveled in Para under reply
against the respondent no6 is completely
baseless and without any substance. Non
selection of the respondent no.8 is
sufficient proof of fairness of selection
committee
and
particularly
of
the
respondent no.6 So far as decision
rendered by Apex court on this issue is
concerned, the same is legal, hence can
suitably be replied at the time of hearing."

4. I have heard learned counsel for
the petitioners and learned standing
counsel for the respondents. Having gone
3 All] Sanjai Singh and another V. State of U.P. and others
1017
through the rival submission of the
counsel of the parties and from the
perusal of record, the first question arises
of consideration as to whether entire
process of selection is vitiated on account
of alleged bias affecting the selection and
other manipulations in the process of
selection? In this regard it is necessary to
point out that it is not in dispute that the
respondent No. 6 was appointed as
Member of selection committee and his
two sons namely the respondents no. 7
and 8 have participated in the process of
selection and one son has secured his
selection and send for training and
appointed on the post in question thus the
question arises for consideration as o
whether whole selection would be vitiated
or only one selected candidate who was
son of the respondent no. 6 alone can be
excluded
from
select
list
and
consequently can be directed to vacate the
post held by him at this juncture it is
necessary to be pointed out that similar
question has received consideration of
Hon'ble Apex Court and other High
Courts to be discussed herein after.

5. In A.K. Yadav Vs. State of
Haryana AIR 1987 SC 454 Hon'ble
Apex Court has dealt with the issue at
length Para 15, 16, 17and 18 of the
decision as under:-

"15. But the question still remains
whether the selections made by the
Haryana Public Service Commission
could be said to be vitiated on account of
the fact that Sri R. C. Maria and Sri
Raghubar Dayal Gaur participated in the
selection process, though Trujillo Nath
Sharma
who
was
related
to
Shri
Raghubar Dayal Gaur did not participate
when Trilogy Nath Sharma came up for
interview and similarly Sri R.C. Marya
did not participate when Shakuntala rani
and Balbir Singh appeared for interview
at the viva voce examination. But
according to the [petitioners this was not
sufficient to vipe out the blemish in the
process of selection for two reasons:
firstly because Shri R.C. Marya and Shri
Raghubar Dayal Gaur participated in the
interviews of the other candidate an that
gave rise to a reasonable apprehension in
the mind of the candidates that Shri R.C
Marya and Shri Raghubar Dayal Gaur
might tent to depress he marks of the
other candidates with a view to ensuring
the selection of the candidates related to
them and secondly, because there could
be reasonable apprehension in the mind
of the candidate that the other members of
the Haryana Public Service Commission
interviewing the candidates might out of
regard for their colleagues tend to give
higher marks to the candidates related to
them. The argument of the petitioners was
that the presence of Shri R.C. Marya and
Shri Raghubar Dayal Gaaur on the
interviewing committee gave rise to an
impression that there was reasonable
likelihood of bias in favour of three
candidates related to Shri R.C. Marya
and Shri Raghubar Dayal Gaur and this
had the effect of vitiating the entire
selection process. This argument was
sought to be supported by the petitioners
by relying on the decisions reported in
D.D. Khanna v. Unjion of India (1973)1
Serv. AIR 19 73 Him Para 30) Surinder
Nath Goel v. State of Punjab (1973)
1Serv. LR.690, (Punj) and M. Ariffudin
v.D.D. Chitaley (1973) 2 Ser. L.R 119, We
do not think this argument can be
sustained and for reasons, which we shall
presently state, it is liable to be rejected.
16. We agree with the Petitioners that is
one of the fundamental principles of our
jurisprudence that no man be a judge in
1018 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
his own cause and that if here is a
reasonable likelihood of bias it is in
accordance with natural justice and
common sense that the justice likely to be
so biased should be incapacitated from
sitting. The question as to whether the
judge is actually biased or in fact decides
partially but whether there is a real
likelihood of bias. What is objectionable
in such a case is not that the decision is
actually tainted with bias but that the
circumstances are such as to crate a
reasonable apprehension in the mind of
others that here is a likelihood of bias
affecting the decision. The basic principle
underlying this rule is that justice must
not only be done but must also appear to
be done and this rule has received wide
recognition in several decisions of this
Court. It is also important to note that this
rule is not confined to cases where
judicial power stricto sensu is exercised.
It is appropriately extended to all cases
where an independent mind has to be
applied to arrive at a fair and just
decision between the f\rival claims of
parties. Justice is not the function of the
courts alone it is also the duty of all those
who are expected to decide fairly between
contending parties. The strict standards
applied to authorities exercising judicial
power are being increasingly applied to
administrative bodies, for it is vital to the
maintenance of the rule of law I a welfare
state
where
the
jurisdiction
of
administrative bodies is increasing at a
rapid pace that the instrumentalities of
the state should discharge their functions
in a fair and just manner. This was the
basis on which the applicability of his
rule was extended to the decision making
process
of
a
selection
committee.
Constituted for selecting officers to the
Indian Forest service in A.K Kraipak V
Union of India AIR 1970 SC150. what
happened in this case was that one
Naquishbund.
The
acting
Chief
Conservator of Forests. Jammu and
Kashmir was a member of the selection
Board which had been set up to select
officers to the Indian Forest Service from
those serving in the forest Department of
Jammu and Kashmir, Naqnisbund who
was a member of the Selection Board was
also one of the candidates for selection to
the India Forest Service . he did not sit on
the Selection board at the time when
name was considered for selection but he
did sit in the selection Board and
participated in the deliberations when the
names
of
his
rival
officers
were
considered for selection and took part in
the deliberations of the selection Board
while preparing the list of the selected
candidates in order of preference. Theirs
court
held
that
the
presence
of
Naquishbund vitiated the selection on the
ground
that
there
was
reasonable
likelihood of bias affecting the process of
selection. hedge, J speaking on behalf of
the court countered the argument that
Naquishbund did not take part in the
deliberations of the selection board when
his name was considered by saving;

"But then the very fact that he was a
member of the selection board must have
its own impact on the decision of the
Selection board. Further admittedly he
participated in the deliberations of the
Selection Board when the claims of his
rivals..... were considered. He was also
party to the preparation of the list of
selected
candidates
in
order
of
preference.
At
very
sage
of
his
[participation in the deliberation of the
selection Board there was a conflict
between his interest and duty...... The
real question is not whether he was
biased. It is difficult to prove the state of
3 All] Sanjai Singh and another V. State of U.P. and others
1019
mind of a person. Therefore what we have
to see is whether there is reasonable
ground for believing that he was likely to
have been biased...... There must be a
reasonable likelihood of bias. In deciding
the question of bias we have to take into
consideration human probabilities ad
ordinary course of human conduct".
This Court emphasized that it was not
necessary to establish bias it was
sufficient to invalidate the selection
process if it could be shown that here was
reasonable
likelihood
of
bias.
The
likelihood of visa may arise on account of
proprietary interest or on account of
personal reasons such as hostility to one
party or personal friendship or family
relationship
with
the
other.
Where
reasonable likelihood of bias is alleged on
the ground of relationship the question
would always be as to how close is the
degree of relationship or in other words is
the nearness of relationship so great as to
give rise to reasonable apprehension of
bias on the part of the authority making
the selection.
17. The High Court of Himanchal
Pradesh in D.K. Khanna's case (AIR
1973 Him Para. 30) (Supra) drawing
inspiration from A.K. Kraipak's case,
held that where one of the members of the
committee
constituted
for
selecting
members of the State Civil Service of
promotion to the Indian Administrative
Service, was the son-in -law of a
candidate
who
was
competing
for
inclusion in the list of selected candidates
, the entire selection process was vitiated
by the presence of such member, though
he did not take any part in consideration
of his father-in- law. The High Court
observed that the degree of relationship in
his case was so close as to reasonably
give an impression to the other candidate
that there was a real likelihood of the son
in law espousing he cause of this father in
law as his own. So also in Surinder Nath
Goel 's case (1973) I Serv LR 690 (Supra)
, the High Court of Punjab and Haryana
took the same view stare it was found hat
two of the candidates appearing for
selection were the candidate appearing
for selection were related to lone of the
members of the selection committee . The
same approach was adopted by the High
Court
of
Andhra
Pradesh
in
M.
Ariffudin's case (1973) 2 Serv LR 119
(Supra) where one of the m embers of the
Andhra
Pradesh
Public
Service
commission and participated in the
selection for the posts of Professor and
Lecturer in the Andhra Pradesh Technical
Education Service, was a partner with
some of the candidates appearing for he
selection and it was held that the entire
selection process was vitiated, because
there was clearly reasonable likelihood of
bias in favour of those candidates on the
part of such member of the Commission.
We may paint out that for as this last
decision is concerned, it does not appear
that he member of the Commission who
was a partner with some sod the
candidate withdraw when those candidate
came to be interviewed and did not
participate in the consideration of their
candidature.
18. We must straightway point out
that A.K. Kraipak's case (AIR 1970SC
150) is a landmark in the development of
administrative law and it has country. We
would not like to whittle down in the
slightest measure the vital principle laid
down in this decision which has nourished
the roots of the rule of law and injected
justice and fair play not illegality. There
can be no doubt that if a selection
committee is constituted for the purpose
of selection candidates on merits and one
of the members of the selection committee
1020 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
is
closely
related
to
a
candidate
appearing for the selection, I would not
be enough for such member merely to
withdraw from participation in the
interview of the candidate related to him
but he must withdraw altogether from the
entire selection committee authorities to
nominate another person in his place on
the selection committee because otherwise
all the selections made would be vitiated
on account of reasonable likelihood of
bias affecting the process of selection .
But the situation here is a little different
because the selection of candidates to the
Haryana Civil Service (Executive) and
allied services is being made not by any
selection committee constituted for hat
purpose but it is being done by the
Haryana Public Service Commission
which is a Commission set up under
Article 316 of the Constitution. It is a
commission which consists of a Chairman
and a specified member of members and
is a Constitutional Authority. We do not
think that the principle which requires
that a member of a selection committee
whose close relative is appearing for
selection should decline to become a
member of the selection committee or
withdraw form it leaving it to the
appointing authority to nominate another
person in his place, need be applied in
case of la Constitutional Authority lie the
Public Service Commission, whether
Central or State. If a member of a Public
Service Commission were to withdraw
altogether from the selection process on
the ground that a close relative of his is
appearing for selection no there person
save a member can be substituted in his
place. And it may sometimes happen that
no other member is available to take the
place of such member and the functioning
of the Public Service Commission may be
affected. When two or more members of a
Public Service Commission are holding a
viva
voce
examination,
they
are
functioning not as individual but as the
Publ9ic Service commission. Of course,
we must make it clear that when a close
relative of a member of a Public Service
Commission is appearing for interview,
such
member
must
withdraw
from
participation in the interview of that
candidate and must to take part in any
discussion in regard to the merits of that
candidate and even the marks or credits
given to that candidate should not be
disclosed to him. Chinappa Reddy, J.
observed to the same effect in Javid
Rasool Bhatt v. State of J and K. (1984) 2
SCC 631: (AIR 1984 SC 873) while
dealing with a similar question which
arose before him for consideration:
"The procedure adopted by the
selection committee and the member
concerned was n accord with the quite
well-known
and
generally
accepted
procedure adopted by the public Service
Commission everywhere. It is not unusual
for candidates related to members of the
Service Commission or other selection
committee to seek employment. Where
such a situation arises, the practice
generally is for the member concerned to
excuse himself when the particular
candidate is interviewed. We notice that
such a situation has also been notices by
this Court in the case of Nagarajan v.
State of Mysore (1966) 3 SCR 682: (ARIR
1966 SC 1942) where it was painted out
that in the absence of male fides it would
not be right to set aside the selection
merely because one of the candidates
happened to be related to member of
selection committee who has abstained
from participating in the interview of that
candidate. Nothing unusual was done by
the present selection committee. The girl's
father was not present when she was
3 All] Sanjai Singh and another V. State of U.P. and others
1021
interviewed. She was one among several
hundred candidates. The mark obtained
by her in the written test was not even
known when she was interviewed'...... 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 not 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 principles of natural
justice. " We wholly endorse these
observations. Here in the present case it
was common ground between the parties
that Shri Raghubar Dayal Gaur did not
participate at all in interviewing Trilogy
Nat Sharma and likewise Shri R.C. Marya
did not participate at all when Shakuntala
Rani and Balbir Singh came to be
interviewed ad in fact both of them retired
form the room when the interviews of
their respective relatives were held.
Moreover, neither of them took any part
in nay discussion in regard to the merit of
his relatives nor is there anything to show
that the marks or credits obtained by their
respective relatives at the interviews were
disclosed to them. We are therefore of the
view that there was o infirmity attaching
to the selections made by the Haryana
Public service Commission on the ground
that thought their close relatives were
appearing
for
the
interview.
Shri
Raghubar Dayal Gaur and Shri R.C.
Marya did not withdraw completely from
the entire selection process. This ground
urged on behalf of the petitioners must
therefore be rejected."

6. Now coming to the facts of the
case it sis not in dispute that the
respondent
no.6
was
nominated
as
member of selection committee and his
two sons the respondent no.7 and 8
participated in the said selection process.
The respondent No. 8 was not succeeded
in written test. The only excuse the
respondents have pleaded in the counter
affidavit that the application was invited
for
selection
of
candidate
vide
advertisement
dated
29.4.1996
in
pursuance there of the respondents no. 7
and 8 have appeared in the said
examination. The respondent no. 6 was
nominated
as
Member
of
selection
committee
vide
order
of
District
magistrate dated 4.7.1996. The selection
committee was constituted according to
the existing rules and G.O. It is averred
that at the time of interview of the
respondent no. 7 the respondent no. 6 has
not participated in the interview and
selection process and he withdrew himself
at that moment.