# G. SARANA v. UNIVERSITY OF LUCKNOW & ORS

- **Citation:** [1977] 1 S.C.R. 64
- **Court:** Supreme Court of India
- **Decided:** 1976-07-28
- **Case number:** Civil Appeal No. 861 of 1975
- **Bench:** A. N. Ray, M. H. Beg, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-sarana-v-university-of-lucknow-ors-6977
- **Pages:** 7

## Headnote

Doctrine of waiver-Bar of waiver, whether applicdble to later grievance
against 'bias'.
Constitution of India, Article 226-When alternative remedies available,
whether writ petition maintainable.
The appellant and respondent No. 8 applied for the vacant post of Professor
of Anthropology in the Faculty of Arts, in answer to an advertisement put
up by the Lucknow University. A selection committee of five persons including
C · three experts, interviewed them and recommended respondent No. 8 for the
post.
The appellant's writ pet.ition challenging the recommendation was dismissed
by the High Court. The appellant contended before this, Court that two of
the expert members of the selection committee were unduly biased against him
and in favour of respondent No. 8. The appeal was contested on two grounds.
Firstly, that by submitting to the jurisdiction of the selection committee, the
appellant had waived his right to denounce its consrituti©n, and secondly, that
the impugned recommendation being an jnterlocutory proceeding against \vhich
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alternative remedies were available, the writ petition was not maintainable.
Dismissing the appeal, the Court,
. HELD : . 1. Despite the fact that the appellant knew all the relevant facts,
he seems to have voluntarily appeared before the committee and taken a chance
of having a favourable recommendation from it. Having done so, it is not
now open to him to turn round and· question the constitution of the committee.
[70 A-BJ
Manak Lal v. Prem Chand [1957] SCR 575=AIR 1957 S.C. 425, applied.
Linahan [19431 138 F. 2nd 650; A. K. Kal"ipak v. Union of India [1970] 1
SCR 457=AIR 1970 SC 150; Nageslnvar Rao v. State of A.P. [1960] 1 SCR
580=AIR 1959 SC 1376; S. Parthararathi v. State of Andhra Pradesh [1974]
l SLR 427; Farooq Ahmad Bandey and Ors. v. Principal Regional Engineering
College & Anr. [1975] J&K L.R. 427; Principles of Administrative Law by
J. A. G: Griffith and H. Street (4th edition) and 'Judicial Review of Administrative Action' (3rd Edition) by Prof. S. A. De Smith, referred to.
2. The recommendation of the selection committee has still to be scrutinised
by the Executive Council of the University and either accepted or rejected by
it, and other remedies by way of representation to the Executive Council aad
an application for reference of the matter under s. 68 of the Uttar Pradesh
Universities (Re-enactment and Amendment) Act, 1974, to the Chancellor are
still open to the appellant and have not been exhausted. The writ petition or
the present appeal before us is not maintainable. po 0-D]

## Text

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64
G. SARANA
v.
UNIVERSITY OF LUCKNOW & ORS.
July 28, 1976
[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]
Doctrine of waiver-Bar of waiver, whether applicdble to later grievance
against 'bias'.
Constitution of India, Article 226-When alternative remedies available,
whether writ petition maintainable.
The appellant and respondent No. 8 applied for the vacant post of Professor
of Anthropology in the Faculty of Arts, in answer to an advertisement put
up by the Lucknow University. A selection committee of five persons including
C · three experts, interviewed them and recommended respondent No. 8 for the
post.
The appellant's writ pet.ition challenging the recommendation was dismissed
by the High Court. The appellant contended before this, Court that two of
the expert members of the selection committee were unduly biased against him
and in favour of respondent No. 8. The appeal was contested on two grounds.
Firstly, that by submitting to the jurisdiction of the selection committee, the
appellant had waived his right to denounce its consrituti©n, and secondly, that
the impugned recommendation being an jnterlocutory proceeding against \vhich
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alternative remedies were available, the writ petition was not maintainable.
Dismissing the appeal, the Court,
. HELD : . 1. Despite the fact that the appellant knew all the relevant facts,
he seems to have voluntarily appeared before the committee and taken a chance
of having a favourable recommendation from it. Having done so, it is not
now open to him to turn round and· question the constitution of the committee.
[70 A-BJ
Manak Lal v. Prem Chand [1957] SCR 575=AIR 1957 S.C. 425, applied.
Linahan [19431 138 F. 2nd 650; A. K. Kal"ipak v. Union of India [1970] 1
SCR 457=AIR 1970 SC 150; Nageslnvar Rao v. State of A.P. [1960] 1 SCR
580=AIR 1959 SC 1376; S. Parthararathi v. State of Andhra Pradesh [1974]
l SLR 427; Farooq Ahmad Bandey and Ors. v. Principal Regional Engineering
College & Anr. [1975] J&K L.R. 427; Principles of Administrative Law by
J. A. G: Griffith and H. Street (4th edition) and 'Judicial Review of Administrative Action' (3rd Edition) by Prof. S. A. De Smith, referred to.
2. The recommendation of the selection committee has still to be scrutinised
by the Executive Council of the University and either accepted or rejected by
it, and other remedies by way of representation to the Executive Council aad
an application for reference of the matter under s. 68 of the Uttar Pradesh
Universities (Re-enactment and Amendment) Act, 1974, to the Chancellor are
still open to the appellant and have not been exhausted. The writ petition or
the present appeal before us is not maintainable. po 0-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 861 of 1975.
(Appeal by Special Leave from the Judgment and Order dated
31-3-1975 of the Allahabad High Court (Lucknow Bench) in
writ
petition, No. 405 of 1974;.)
A. K. Sen and S. K. Bisaria, for the appellant.
C. P. Lal, for respondents. 1-3.
Yogesh1w1r Prasad and R. N. Trivedi, for re!lpondents No. 8.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave is directed against
the judgment and order dated March 31, 1975, of Lucknow Bench of
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G. SARANA v. UNIVERSITY OF LUCKNOW (Jaswant Singh, !.)
65
1hc Allahabad High Court dismissing the writ petition No. 405 of 1974
filed by the appellant challenging the recommendation made by a Selection Committee of the Lucknow University (hereinafter referred to as
'the University') for appointment of respondent No. 8 as Professor of
Anthropology in the Faculty of Arts of the University.
The facts giving rise to this appeal are : Towards the end of the
year 1973, the University put up an advertisement inviting applications
from candidates possessing the following qualifications to fi!I up a
vacant post of Professor of Anthropology :- ·
.
"Essential : · First or high second class Master's degree
and Doctorate in the sub.iect concerned with a good academic record, experience of teaching post-graduate classes for
not less than 7 years and/or having conducted and successfully guided research wprk for 7 years in recognised institution and having published work of high standard in the subject concerned."
Preferential : High academic distinctions."
The appellant and' respondent No. 8 were the only two candidates ·
who applied for the post in response to the advertisement Their respective qualifications are ll;S set out hereunder :-
S. No.
Name·
1. Dr. G. Sarana,
Head of Deptt.
· of Anthropology,
Karnatak University,
Dharwar.
- Age
38 years
Qualifications & Experience
H. S. (U. P. Bd) 1949-1 Div.
Inter (B.H.U.) 1951-1 Div.
B.A. (L.U.) 1953-1 Div.
M.A. (L. U.) 1965-1 Div.·
Ph.D. (Harvard (U) 1966.
Published 28 research papers and
3 books.
Worked as:·
(1) Temp. Lecturer in Antbro-"
pology L.U. July,.
1955-April,
1962.
(2) Lecturer in
AnthropologyPunjab. U-April-August, 1962.
(3) Visiting
Lecturer~Univ. of
California at Santa_ ; Barbara·
July 1965-June 1966.
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(4) Kamatak
University
(September 1966 upto
date
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as Reader and since 27 June 1970)
as Professor.
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
S.No.
Name
Age
2. Dr. K. S. Mathur,
44 years
Reader and Head of the
Deptt. of Anthropology,
Lucknow University.
Qualifications & Experience
H. S. (U. P. Bd) 1944- I Divn.
Inter (U. P. Bd) 1946- I Divn.
B. Com (L. U.) 1950- l Divn.
Ph. D. (Australian National U.)
1960.
Published several research pa~c1s.
Worked as:-
(J) Lecturer
in Anthropology,.
f +
L. U.-1951-64.
(2) Reader in
Anthropology-
'L.U. -1964-continuing
(3) SociologistNational Council of Appl. Economic Research,
New Delhi March-September1960.
On February 27, 1974,, a Selection Committee consisting of Shri
A. K. K. Mustafi, Vic~ancellor of the University, Dr. K. N. Shukla,
Dean, Faculty of Arts and Professor & Head of the Department of
Hindi of the University, and three experts viz., Dr. S. C. Dube, Dr.
S. R. K. Chopra and Dr. T. B. Mayak, respondents 3,. 4, 5, 6 and 7
respectively met to interview the candidates and to make their' recommendation to the Executive Council of the University. After interviewing the aforesaid two candidates, the Selection Committee resolved to
recommend respondent No. 8 herein for appointment to the aforesaid
post of Professor of Anthropolo~.
On coming to know of the recommendation, the appellant filed the
aforesaid petition under Article 226 of the Constitution chal1enging the
recommendation mainly on the ground that two out of the aforesaid
three experts viz., Dr. S. C., Dube and Dr. S. R. K. Chopra were biased
against him and in favour of respondent No. 8. It was alleged by the
appellant that thl'l respondent had close relations with the aforesaid two
experts as he was instrumental in obtaining many remunerative assignments for them. It was further averred by the appellant that whenever
Dr. Dube visited Lucknow, he stayed with respondent No. 8. It was
also averred by the appellant that Dr. Chopra had strained relations
with him on account of straight election contest between him and the
latter for the office of the President of Anthropology Section of the
Indian Science Congress for 1974. The appellant further averred that
in 1968 when he was serving in ,the Punjab University as a Lecturer
in the Department of Anthr9pology headed by Dr. Chopra, the latter
stubbornly opposed his application for leave to avail of the offer of
fellowship from Harvard University and stopped forwarding his saJ3r•
bills to the Executive Council wi!h the ulterior object of depriving him
of the opportunity to attain higher academic qualification and: thereby
better his future prospects with ,the result that he was compelled
to
resign his job and surrender three months' salary in lieu of notice to
avail of the offer.
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G. SARANA v. UNIVERSITY OF LUCKNOW (Jaswant Singh, J.)
The petition was vigorously contested by respondent No. 8.
On
consideration of the material placed before it, the High Court, however, dismissed the application holding that though respondent No. 8
was the head of the department of Anthropology,, he was not the: only
person responsible for bestowing various assignments e~ther on Dr. Dube
or on Dr. Chopra and that it was the Executive Council and the
Academic Council which were responsible for giving those assignments
to Dr. Dube and Dr. Chopra. It was further held by the High Court
that there was nothing unusual in Dr. Dube and Dr. Chopra's knowing and enjoying ,the hospitality of respondent No. 8.
The fact that
the appellant had an election contest with Dr. Chopra was also, in the
opinion of, the High Court, of no significance, as
such like contests
were very common and it could not be said that Dr. Chopra had developed such a degree of ill-will and hostility against the appellant for
the latter's standing as a candidate against him so as to render him
incapable. of acting impartially when the task of selecting the best candidate was assigned to him and that it was not possible to presume that
Dr. Dube and Dr. Chopra were in a position tQ intluence the decision
of the entire Selection Committee by injecting bias in the minds of the
other members. The High Court finally held that from the facts relied
upon by the appellant, bias could not be spelt out. In arriving at its
decision, the High Court relied upon the following observations· made
by Frank, J. of the United States of America in re. Linahan. (I)
"If, however, "bias" and "partiality" be. defined to mean
the total absence of preconceptions in the mind of the Judge,
then no one has ever had a fair trial,, and nd one ever will.
The human mind, even at infancy, is no blank piece of paper.
We are born with predispositions and the processes of education, formal and informal, create attitudes which precede
reasoning in particular instances and which,
therefore, by
definition, are prejudices."
The High Court also held that the appellant having submitted to
the jurisdiction of the Selection Committee, he could not be permitted
to turn round and denounce the con:>titution of the Committee.
Counsel for the parties have reiterated before us the contentions
:aised on behalf of their clients before the High Court. In addition,
1t has been contended by cognsel for respondent No. 8 tha.t the im~
pugned recommendation being in the nature of an interlocutory proceeding,, neither the writ petition nor the appeal arising therefromi could
be maintained .
. It is needless to emphasize that thel principles of natural justice
which are_ meant. t? prevent mi~c~rria&e of justice are also appl.icable
to domestic enqmnes and adm1mstrat1ve proceedings.
(See A. K.
Karipak v. Union of /!1dia( 2 ) •. It cannot also be disputed that one of
!he. f_undamental. pnnc1ples of n~tural justice is that in case of quasi-
.iud1crnl proceedmgs, the authonty empowered to deciJe the dispute
fl) [1943], 138F. 2nd 650 at 652.
(2) [J969] 2 S.C.C. 262 : [1970) 1 S.C.R. 457 : A.I.R. 1970 S.C. 150.
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SUPREME COD.RT REPORTS
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between ~pposin~ P.arties must be one\ without bias by which is meant
an operative preiud1ce, whether conscious or unconscious towards one
side or the other in the dispute.
(See Nageswara Rao v. A. P. State
Road Tralisport Corporation(') and Gul/apalli
Nages!twar
Rao v.
State of A.P.e).
It _would be advantageous at this stage to refer to the following observat10ns made by this Court in Mana/a Lal v. Prem Chand(3).
"Every member of a tribunal that sits to try issues
in
jt!dicial or quasi-judical proceedings, must be able to act judicially; and the essence of judicial decisions and judicial admi~ist~ation is tha_t judges sho~ld be able tq act impartially,
obiectively and without any bias.
In such cases the .~est is
not whether in fact a bias has affected' the judo-ment· the test
always is and must be whether a litigant· co~ld rda5onably
apprehend that a bias a'.tributable to a member of the tribunal might have operated against him in the final decision of
the tribunal. It is in this sense~ that it is o£ten said that justice must not only be done but must also appear to be done."
Again as held by this Court in A. K. Karipak's case
(supra), reiterated in S. Parthasarthi v. State of Andhra Pradesh( 1 ) and followed
by the High Court of Jammu & ~i!shmh' in Farooq Ahmed Pandey and
Ors. v. Principal Regional Engineering College & Anr.( 0) the real
question is not whether a member of an administrative Board while
exercising quasi-judicial powers or discharging quasi-judicial functions
was biased, for it is difficult to prove the mind o~ 'a person. What has
to be seen is whether there is. a reasonable ground for believing that
he was likely to have been biased. In deciding the question of bias,
human probabilities and ordinary course of human conduct have to
be taken into consideratiQn. In a group deliberation and decision like
that of a Selectioni Board, the members do not function as computers.
Each member of the group or board is bound to influence the others,
more so if the member concerned is a person with special knowledge.
His bias is likely to operate in a subtle manner.
At page 156 of "Principles of Administrative Law" by J. A. G.
Griffith and H. Street (Fourth Edition), the position with regard to bias
is aptly and succinctly stated as follows :-
"The prohibition of bias strikes' against factors which may
improperly influence a judge in deciding in favour of one
party. The first of the three disablin~ typi;s o~ bi~s is. bias
on the subject-matter.
Only rarely will this bias mvahdate
proceedings. "A mere general interest in the general object
to be pursued would not disqualify,," said Field J., holding
that a magistrate who subscribed to th~ Royal Society for the
Prevention of Cruelty to Animals was not thereby disabled
(1) [1959) Supp. 1 S.C.R. 319 : A.T.R. 1959 S.C. 308.
(2) A.I.R. 1959 S.C. 1376 : [1960] 1 S.C.R. 580.
(3) [1957] S.C.R. 575 : A.J.R. 1957 S.C. 425.
(4) [1974] S.L.R. 427.
(5) [1975] J & K. L. R. 427.
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G. SARANA v. UNIVERSITY OF LUCKNOW (Jaswant Singh, !.)
69
from trying a charge brought by that body of cruelty Jo a
horse. There must be some direct connection with the litigation. If there is such prejudice on the subject-matter that the
court has reached fixed
and unalterable
conclusions not
founded on reason or under§!llnding, so that there is not a
fair hearing, that is bias of which the courts will take account, as where a jnstice announced his intention of co1ivicting anyone coming before him on a charge of supplying
liquor after the permitted hours .......... .
Secondly, a pecuniary interest, however, slight will disqualify, even though it is not proved that the decision is in
any way affected.
The third type of bias is personal bias. A Judge may be
a relative, friend or business associate of a party, or he may
be personally hostile as a result of events happening e.ither
before or during the course of a trial. The c.ourts have not
been consistent in laying down when bias of this type will invalidate a hearing.
The House of Lords in Frome United
Brewering v. Bath Justices(') approved an earlier test of
whether "there is a real likelihood :of bias." The House of
Lords has since approved al
dictum of Lord Hewart that
"justice should not only be done,, but should manifestly and
undoubtedly be seen to be done" al,though it did not mention another test suggested by him in the same judgment :
Nothing is to be done which creates even a suspicion that
there has been an improper interference with the course of
justice."
At page 225 of his Treatise on "Judicial Review of Administrative
Action" (Third Edition), Prof. S. A. De Smith, has stated as follows
with regard to Reports and Preliminary decisions :-
·
"The case-law on the point is thiR, but on principle it
would seem tha~ where a report or determination lacking final
effect may nevertheless have a seri_ously judicial effect on the
legally protected interests of individuals (e.g. when it is a
necessary prerequisite of a final order) the person making
the report or preliminary decision must not be affected by
interest or likelihood of bias."
From the above discussion, it clearly follows that what has to be
seen in a case where there is an allegation of bias in respect of a member of an administrative Board or body is whether there is a reasonable
ground for believing that he was likely to have been biased. In other
words whether there is substantial possibility of bias animating the mind
of the member against tl}e aggrieved party.
We do not, however, consider it necessary in the present case to
go into the question of the -reasonableness of bias or real likelihood of
bias as despite the fact that the appellant knew all the relevant facts,
he did not before appearing for the interview or at the time of the
(1) (1926) A.C. 586.
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SUPREME COURT REPORTS
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intervie.w raise even his littie finger against the constitution of the
Selection Committee.
He seems to have voluntarily appeared before
the Committee and taken a chance of having a; favourable recommendation from it. Having done so, it is not now open to hin1 -to turn
round and q_u~tionl the constitution of the Committee. This view gains
strength from a decision of this Court in Manak Lal's case
(supra)
where in more or less .similar circumstances,. it was held that thei failme
of the appellant to take the identical plea at the earlier stage of the
proceedings created an effective bar of waiver against him. The following 0bservations made therein are worth quoting:--
"It seems clear that the appellant wanted to take a chance
to secure a favourable report from the tribunal which was
constituted and when he found that he was confronted with
an unfavourable report, he adopted the device of raising the
present technical point.'',
It is also difficult to understand how the writ petition. or for that
matter the present app~al b_efore us is maintainable when the recommendation· of the Selection Committee has still to be scrutinzed by the Executiive Council 0£ the University and either accepted or rejected by
it and other remedies by way of representation to the Executive Council
and an application for reference of the matter under section 68 of the
Uttar Pradesh Universities (Re-enactment and Amendment) Act, 1974,
to the Chancellor are still open to the appellant and have not been exhausted.
For the foregoing reasons, we find our_t;~ves unable to allow the
appeal. In the result, the appeal fails and is hereby dismissed but in
the circumstances 1 of the case without any order as to costs.
M.R.·
Appeal dismissed.
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