N.H. Bhatt, J.
1. This is an interesting petition brought to this Court by one candidate who had appeared before the respondent No. 2, the Gujarat Public Service Commission, hereinafter referred to as the Commission for brevity's sake at the interview held for selecting amongst others a tutor for Orthodontia for the Government Dental College at Ahmedabad run by the respondent No. 1, the State of Gujarat, and headed by its Dean, Dr. K. Bhargav, the respondent No. 3 herein, at which selection the respondent No. 4 was selected. His selection has been called in question by the petitioner, an unsuccessful candidate, inter alia on the ground that the selection of the respondent No. 4 was manoeuvred by the respondent No. 5, Dr. Malaowala, whose son the respondent No. 4 is.
The petitioner prays for the following main relief in this petition:
That the Hon'ble Court be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the selection of 4th respondent to the post of tutor in Orthodontia and to declare that the entire selection procedure was null and void and to direct the second respondent to hold the interview afresh.
2. The petitioner in the year 1979 beginning was studying for the degree of Master of Dental Surgery with orthodontia as his subject. The petitioner had passed his B.D.S. examination, securing the first rank amongst the first class students, who appeared at that examination held by the Gujarat University. The petitioner was even awarded one Gold Medal for standing first in the final B.D.S. examination and he was awarded another Gold Medal for securing highest marks in the subject of Orthodontia. At the time of interview the petitioner was holding the post of a tutor on ad hoc basis in the subject of Prosthetic Dentistry.
3. There had come to be issued in the month of February 1979, 22-2-1979 to be exact, the advertisement, Annexure A for various posts of tutors at the Government Dental College at Ahmedabad. One of the posts was a post of a tutor in Orthodontia. The petitioner had applied for the post and so had applied the respondent No. 4. Some other candidates also were there. The interviews for the post were held on 25-4-1979. The petitioner had appeared as a candidate not only for that post, but he had appeared for other six posts also. That very day, the commission declared that the respondent No. 4 was selected. The petitioner thereafter had filed the present petition on 7-5-1979 for the above relief.
4. The case of the petitioner as extracted from his petition rests on the following allegations:
(1) Dr. Malaowala (the respondent No. 5) wanted to secure appointment for his son and hence though there was no vacancy in the post of tutor for Orthodontia, he could by his influence get the advertisement issued. It is submitted that at the time when the advertisement was published there was no notified vacancy in the post of tutor in Orthodontia and the advertisement to that extent was illegal. It appears that Malaowala wanted his son to be selected during his tenure of membership of Gujarat Public Service Commission and, therefore, he was instrumental in getting the said post advertisement (from para 4 of the petition).
(2) The petitioner states that to his knowledge the posts of tutors in other subjects were lying vacant since more than 12 to 18 months and no hurry was shown to fill in the said posts. However, Dr. Malaowala being due to retire within a short time moved the Government machinery very vast and along with other posts of tutors he also succeeded in getting advertised the post of tutor in Orthodontia. Dr. Malaowala wanted his son to be selected anyhow' (from paragraph 4 of the petition),
(3) Over and above these three persons (Chairman Mr. Solanki, 2nd Member Mr. Chaudhari and Third Member the respondent No. 3), one Government nominee is invited at the time of selection and usually the Dean of the Faculty is also invited. It is stated that at the time of interview for the post of tutor of Orthodontia, Hon'ble Chairman of the Commission was absent and Dr. Malaowala, though the at the office of the Commission made a show of remaining absent and non-participating in the process of selection. The permanent Government nominee Dr. G. P. Gupta was also absent but in the stead, Deputy Director of Medical and Educational Research was present. It is submitted that he is not the Government nominee' (from paragraph 5 of the petition).
(4) The petitioner submits that for the first time, second respondent invited experts on the subjects from Bombay and other places. The second respondent never invited expert or any outsider for selection to the post of tutor. However, Dr Malaowala putforth the idea of inviting experts and in the guise of calling experts be himself went to Bombay and selected one of his close friends Dr. A.B. Modi to come for interview. It is submitted that thus a Committee of three persons sat for interview and one of them was Dr. A.B. Modi, a close friend of Dr. Malaowala who was put on the Committee against the Rules. It is submitted that the committee of the 2nd respondent, which is set for selection was illegally constituted inasmuch as it was contrary to the rules of the commission.... The petitioner slates that Dr. Malaowala was instrumental in getting the special committee constituted. One of the members of the Committee Dr. Modi was and is the close friend of Dr. Malaowala and was specially instructed by Dr. Malaowala to select his son in the interview...(from paragraph 5 of the petition).
(5) It is submitted that Dr. Malaowala remained the in all interviews and in the interviews for the post of tutor in Orthodontia he could procure the services of his close friend. It is submitted that Dr. Malaowala was the in the office and in fact a mere show of interview was made while the selection was already made. Dr. Modi and Deputy Director were from the beginning instructed to select the fourth respondent solely because he happens to be the son of Dr. Malaowala (from paragraph 5 of the petition).
5. Above are the board heads of allegations on the basis of which the selection of the respondent No. 4 was seriously called in question in this petition on the well-known principle of bias in favour of the respondent No. 4 on the part of the Commission in selecting him.
6. A preliminary objection was raised by the respondent No. 4 as well as by the State Government to the maintainability of this petition on the ground that the petitioner, who had with full knowledge of the facts on which the plea of bias rested, had participated in the selection process and after having failed to avail himself of the possible chance of being selected, he had come to this Court, challenging the very selection process and that he should be deemed to have waived his objection and his petition was liable to be set at naught on the ground of his alleged acquiescence in the alleged illegalities and/or irregularities committed by the Commission in selecting the respondent No. 4. The plea put forward by the respondents in this connection deserves to be specifically noted, because Mr. S.D. Shah, the learned advocate for the petitioner, had in the course of his submissions, contended before me that there was no specific plea of waiver of acquiescence in the affidavits filed in reply. The respondent No. 4 in his first affidavit filed at the interlocutory stage, had stated as follows:
The petitioner states in para 3 of his petition that he was surprised to see the advertisement by the Gujarat Public Service Commission for the post of Tutor in Orthodontia, as there was no post of Tutor in Orthodontia vacant at the Govt. Dental College. It is not understood as to why he did not go to the court of law then only. It is also not understood as to why he applied for the post and also attended for the interview for this post on 25-4-79. It is only when he saw that he was net selected be went to the court of law....
The respondent No. 2 Commission in their preliminary affidavit filed at the preliminary stage before admission of this matter stated as follows:
If the petitioners thought that there was no vacancy for this post, he should have gone to the court immediately on seeing the advertisement, but he did not do so and he himself applied for the post and also appeared for the interview and when he was not selected, he comes with this argument, which is absolutely baseless. The petitioner cannot be permitted to approbate and reprobate. He is guilty of acquiescence, if at all there was any substance in his allegation in this regard....
In the Government's affidavit at page 58, it has been stated as follows:
If the petitioner thought that there was no vacancy for this post, he should have gone to the court immediately on seeing the advertisement but he did not do so and he himself applied for the post and also appeared for the interview and when he was not selected, he comes with this argument, which is absolutely baseless. The petitioner cannot be permitted to approbate and reprobate. He is guilty of acquiescence, if at all there was any substance in his allegation in this regard....
7. The petitioner has filed his affidavit-in-rejoinder at that stage before admission. At page 67 he in this regard states as follows:
I state that I applied for the post because Orthodontia is the subject of my specialisation and if due to my non-action and not applying for the post if someone is selected and appointed for the said post, my future prospect will be ruined and with that intention in mind I applied.. I state that this entire situation is so created by respondent No. 5 with his influence that starting from notifying of the vacancy till the selection to the post everything was under the influence of Dr. Malaowala and was at his instance only. When my right to be fairly considered for the post was in jeopardy and when the respondent No. 5 could procure the post for his son, I had no option but to come to the court....
At page 80 of that very affidavit at the pre admission stage, he has further stated as under:
However, I state that I have a right to be considered for the post of Tutor by an impartial, independent and non-committed Committee. The commission presided by respondent No. 5 and the interview committee nominated and selected for ulterior motive by respondent No. 5 (as the regular Chairman was on leave from 23-4-79 for 33 days, the respondent No. 5 was Holding the post of Chairman admittedly) was biased against me and in favour of the respondent No. 4 in the beginning and the said committee, therefore, cannot afford me the opportunity of being considered by an impartial and independent body. The very involvement of respondent No. 5 in securing appointment to his son is so written large in his own affidavit that the entire process of selection is vitiated by Departmental bias and by mala fide evercise of power.
Finally, in paragraph 20 of that very affidavit at page 87, he says:
It is true that I applied for the post of Tutor in six different subjects but the same was done because of the apprehension that respondent No. 5 will play his role and will ruin my career by getting me rejected in as many subjects as he can. Ultimately, my apprehension has come true and respondent No. 5 has achieved what he wanted by getting me rejected in six subjects and especially in the subject of Orthodontia where I am doing my specialization.
8. From what I have quoted above, it is crystal clear that the plea of acquiescence and waiver has been raised and. in my estimation, Mr. Shah was not right in his submission that no specific plea was raised. As a matter of fact it was raised in black and white and in in mistakable terms even long before the petition bad come to be admitted by me on 5-6-77.
9. I hold that barring the bald allegation on the part of the petitioner, there is nothing on record to enable one even to remotely infer that Dr. Malaowala was in a position to exercise influence over the Government in getting the post of Tutor in Orthodontia advertised. I am also going to hold below while discussing the merits of the matter as an alternative proposition, that Dr. Malaowala had not played any special role in getting Dr. Modi as an Adviser to the Commission at the time of the interview. I am also going to hold that Dr. Malaowala is not shown to be the close friend of Dr. Modi, but the latter knew him as be knew mnay other people in the dental field in the whole of the Nation because of their being birds of the same feather. 1 hold that Dr. Malaowala, the respondent No. 5, bad not remained present, as admitted even in the petition, at the time of the actual interview, but it is established beyond any doubt that he was a party to the resolution of the Commission in selecting Dr. Modi out of the two names suggested by the Secretary. I am also going to hold below that as per Rule 19 of the Gujarat Public Service Commission Procedure Rules, Dr. Malaowala was a party to the resolution appointing the remaining sole member, Mr. Chaudhary, as a one-man Committee to transact the business of interview on 25-4-79 as far as the interviews for the post of a tutor in Orthodontia were concerned and that the proceedings of that one-man Committee of Mr. Chaudhary were circulated to him, the only other member of the Commission at that time, the regular Chairman being on leave, and he had agreed to that proceeding and on his agreement, the said selection of the respondent No. 4 had become the decision of the Commission. As a corollary, I am going to hold that above-mentioned participation of Dr. Malaowala was unbecoming of him as the Member of a very august and constitutional body like the Gujarat Public Service Commission and a wiser course for him was to totally abstain from associating with any step, which directly or indirectly concerned the selection of a tutor in Orthodontia, because at that selection, his son, the respondent No. 4, was one of the candidates. Dr. Malaowala in his affidavit stated that he did know well before-band that his son was to be a candidate for the post. He had received some opinion from his well-wishers, advising him against the desirability of his son's candidature and he ultimately thought that his son, as a Citizen of India, had a right to apply for the post. With his knowledge. Dr. Malaowala should have totally abstained from taking any part in any step of the selection procedure, which involved the selection for the post of a tutor in Orthodontia.
10. I had made it clear in the course of the hearing that Dr. Malaowala's association with the three stages of the selection process was not proper and that Dr. Malaowala is not proved to have exerted any express influence over his colleague Mr. Chaudhary or over another member Dr. Modi or the Deputy Director of Medical Education and Research.
11. In the facts, as said above, is it not probable and reasonable to say that the petitioner, with full knowledge of the material facts, taken part iii the selection process and then took up cudgels only after he found that he had lost the battle, which his pleadings show, was taken by him to be a battle to be fought for certain defeat.
12. In this connection, the law laid down by the Supreme Court deserves to be referred to. As back as in the year 1957, the Supreme Court while deciding the case of Mcmak Lal v. Dr. Prernchand : 1SCR575 has deal with the question of bias. The Supreme Court in that connection in paragraphs 8 and 9 has laid down the law as follows:
The alleged bias in a member of the Tribunal does not render the proceedings invalid, if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the Tribunal. It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question.
It was held on the facts and circumstances of that case that the appellant knew the material facts and must be deemed to have been conscious of his legal rights in that matter and, therefore, his deliberate failure to raise the objection to the constitution of the Tribunal on ground of bias before the tribunal at the earlier stage of the proceedings created an effective bar of waiver against him and he was precluded from raising it before the High Court for the first time. It was further held. 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 (emphasis supplied by me).
13. Another case in this connection to be referred to with advantage is the case of Dr. G. Sarana v. University of Lucknow and Ors. : (1977)ILLJ68SC . It is the case of selection at the time of interview. The Supieme Court in paragraphs 14 and 15 of that judgment has observed as follows:
14. 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 the aggrieved party.
After laying down the general proposition in that regard, the Supreme Court, however, proceeded to further state as follows:
15. We do not, however, consider it necessary in the the 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 interview raise even his little 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 if. Having done so, it is not open to him to turn round and question the constitution of the committee.
14. The next case cited is the case of Suresh v. Vasant : AIR1972SC1680 . In that case, it has been observed that:
High Court while granting relief under Article 226 should keep in view that no injustice will cause to opposite parties and that the issue of writ will not be futile. Thus a writ petition against a student who was admitted to curtain course and was about to complete it successfully should not be allowed when the petitioner himself is not eligible for admission to that course', (emphasis supplied by me) This authority was pressed into service for the purpose of showing that the petitioner is disentitled to prosecute this petition and when he was not selected at all, though some other lady candidate was at No. 2. In view of what has been stated above, the selection of the respondent No. 4 should not be set at naught.
15. Mr. S.D. Shah, the learned advocate appearing for the petitioner, in this connection submitted that there must be a specific pleading of waiver stating all facts which result into abandonment of right and that the petitioner must be told at the time of interview that he has a right to object, as the respondent No. 4's father was in a position to influence decision of the Commission. Mr. Shah in this connection invited my attention to the case of the Supreme Court in Mis. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and Ors. : 118ITR326(SC) . There it has been observed that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in pleadings. In that case, the plea of waiver was not taken by the State Government in the affidavit filed on its behalf in reply to the writ petition, nor was it indicated even vaguely in such an affidavit and it was sought to be raised for the first time at the hearing of the writ petition. The Supreme Court, therefore, held that that was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such a plea. Explaining what waiver is, the Supreme Court has further held that waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be an intentional act with knowledge. The Supreme Court further held that there can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it.
16. Mr. Shah submitted that it was the duty of the Commission at the time of the interview to inform the petitioner that he had a right to object to the constitution of the Committee and a right to object to the interviews themselves by members the there, because of the apprehended interference at the hands of the respondent No. 5 Mr. Shah has not been able to show any authority which shows that it is the duty of the Commission to tell the petitioner that he had a right to object. The pleadings, which I have extensively quoted above in the initial part of this judgment while giving synopsis, make it clear that the petitioner was from the beginning in full know of his right to object. He was in full know of the fact that the whole was a show manoenvered by the respondent No. 5 for the benefit of the other candidate, the respondent No. 4. He knew well in advance that the advertisement and that what was to follow the advertisement in the form of selection and selection procedure was all stage-managed by the respondent No. 5, who wanted to secure his son's appointment at the dental college, before he gave a good-bye to his office of a Member of the Gujarat Public Service Commission. The petitioner was not required to wait for being formally told all these facts, because he fully knew all these facts, as the averments made by him in the petition and also elaborated by him in the affidavit amply bear out. He according to him knew well before the time of the interview that he was to attend a so-called farce and that the result was for all practical purposes a foregone conclusion. He knew that he bad a right to be considered for selection. The quotation from the affidavits of the respondents go to show that a specific plea about waiver and acquiescence is there. So, Mr. Shah's submission that there was no specific pleading, as was in the case of Motilal Padampat Sugar Mills (Supra), is not well-founded nor be is in any way right in his submission that the petitioner was required to be told that he bad a right to object.
17. In this connection Mr. Shah, however, very ingeneously as I would say, tried to strike a departure. In his submission, the petitioner knew generally that the issuance of the advertisement and the conduct of selection process was the out come of the manoeuvering of the respondent No. 5, but according to him, the petitioner knew for the first time that Dr. Malaowala was a party to the resolution inviting Dr. Modi, that he was a party to the resolution appointing one-man Committee of Mr. Chaudhary and that he was a party to the final decision of the commission in respect of the selection of the respondent No. 4. It cannot be gainsaid that these three specific last-mentioned factual aspects as such came to the notice of the petitioner, after the respondents made their appearance before this Court pursuant to the notice issued at the pre admission stage. Mr. Shah wants to avail himself of this knowledge about details as a ground in support of the plea that there was only a suspicion lingering in the mind of the petitioner, till he applied for the post and appeared at the interview, and that whatever apprehension or suspicion that was lingering in his mind till that stage had come to be considerably mitigated when he say at the time of the actual interview in the ball of the interview that Dr. Malaowala was physically not present. This submission of Mr. Shah is not well-rooted. The petitioner in the petition and in the affidavit has categorically stated that he knew well in advance that selection was only a farce, that the image of the respondent No. 6 Dr. Malaowala was all throughout hovering over the head of all the persons concerned with or the at the time of the interview and that physical absence of Dr. Malaowala at the time of the actual interview was also a part of his wider game. Subsequent disclosure of two or three detailed facts set out by Mr. Shah above do not take away from the overall ground of his alleged reasonable belief in (he alleged vitiated character of the selection process. If he believed that right from A to Z, every stage of the selection was impressed by the character of the interest of the respondent No. 5 the fact that in one or two facets of that selection process Dr. Malaowala was not physically present, would not have changed the character of his apprehension. If what has been insisted upon by the petitioner in his petition and in his affidavit has to be taken note of, it has to be stated with undepartable certainty that the petitioner even when he applied for the post and even when he appeared at the interview, reasonably believed that everything was an eye-wash, everything was stage-managed, everything was a play that was being enacted with the string pulling of Dr. Malaowala and with this apprehension of the facts, some of which technically are to be held by me as established and some of which not established as far as the details go, will not in any way detract from the worth of his alleged general allegations on which his reasonable suspicion of bias or rather probable bias rested. It is, therefore, clear to me that the petitioner despite this knowledge took his chance applied for the post, appeared at the interview in the remote hope that he would be selected because of his two Gold Medals procured by him at the B.D.S. examination and because of his alleged superior merits. He cannot now turn round and complain of everything being a matter of stage-managing on the part of the respondent No. 5. In technical language, he cannot be allowed to approbate and reprobate. With the full knowledge of the alleged overall role of the respondent No. 5 being fixed in his mind, he takes the chance and after having found that the grapes are sour, he comes to this Court with the cry of injured innocence. This is what is sought to be arrested by the Supreme Court in the three authorities already referred to above beginning from the year 1957.
18. Mr. Shah in this connection had invited my attention to the Administrative Law by Wade, 4th Edition page 409 in connection with the plea of waiver. In support of his contention that the petitioner if found not knowing that he was entitled to raise his objection then, the question of waiver did not arise. The learned Author in this connection states as follows:
But in one case, where the litigant had appeared in person before the justices, certiorari was granted even though he knew the facts at the trial, since he did not know that he was entitled to raise his objection then, and there can be no waiver of rights of which the person entitled is unaware.
In the facts of the case, the petitioner has to be assumed to have that knowledge and even the Supreme Court in the case of Maneklal's case 1957 SC 425 had assumed such knowledge.
19. Mr. Shah for the petitioner at the conclusion of his arguments not only on the merits of the matter, but also on the preliminary objetion raised on behalf of the respondents and after Mr. Shelat for the respondent No. 4 had started giving his reply to his contentions wanted to produce some affidavit, but I had not permitted him to produce the same though Mr. Shah stated that an unsworn copy thereof was given to the respondent No. 4, the previous evening.
20. On this preliminary ground being upheld, the petition will be liable to be dismissed and rule discharged with no order as to costs, but to me it appears that as a very august body like the Public Service Commission, which is a constitutional creature, is involved and as the possibility of this matter being taken up to the higher forum also cannot be ruled out, I propose to examine the case of the petitioner alternatively and 1 have no hesitation in holding that had I held that the petition was not liable to be rejected on the preliminary ground, it would have succeeded on the facts that I am to hold as proved.
21. There are 10 grounds of allegations on which the plea of bias was based. The first ground relates to the alleged manoeuvring on the part of the respondent No. 5 to coerce the Government to get the post advertised. It is alleged that 10 to 12 posts of Tutors in other subjects were lying vacant for about 12 to 18 months and the Commission came to be informed of filling in those posts only by the letter dated 6-2-79. Thereafter, addition of the post of a tutor in Orthodontia was communicated by the letter dated 16-2-79. Mr. Shah wanted me to draw an inference that this comparatively belated addition was at the instance of the respondent No. 5. The Secretary of the Government in his affidavit denies this. As a matter of fact, the normal procedure in this regard is that the Dean of the Dental College informs the Director of Medical Education and Research, who is his immediate superior, of the post having fallen vacant and the Director in his turn moves the Government and the Government in its turn informs the Gujarat Public Service Commission to hold the interviews. These various stages obviously would take some time. It is well nigh possible that the move for filling in the post of a tutor in Orthodontia might be afoot earlier and must have come to the Government's notice after the letter dated 6-2-79 was issued to the Commission. Secondly, it was in this connection urged that the Dean, the respondent No. 3, bad not notified this vacancy to the Director. The facts of the case are that one Dr. Hajirawala, the holder of the second post of a Tutor in Orthodontia, had tendered his resignation on or about 15-12-78 making it retrospectively operative from 30-8-78. It appears that Dr. Hajirawala must have stopped attending to his post and duties since the close of August 1978. The respondent No. 3, Dr. Bhargav, thinks that till he finally notifies the vacancy as such, there cannot be any vacancy. Whether a vacancy exists or not is a question of fact and it does not depend upon the respondent No. 3's notifying it as such. It appears that Dr. Bhargav, the respondent No. 3, arrogates to himself a right which he does not possess. When the resignation was tendered by Dr. Hajirawala in the month of December, 1978, the Director must have come to know about it. Whether Dr. Hajirawala filled in C.T.C. (Certificate of Transfer Certificate) or not, is immaterial as far as the vacancy is concerned. This may be a formal requirement in order to formally accept the resignation or to give Dr. Hajirawala what is due to him from the Government. If the Director moves to get this post also filled along with other posts of the Department, there is nothing unusual or abnormal about it. Simply because the Government's machinery at times is lethargic and at times moves very fast, it is unreasonable to jump to the conclusion that this movements are shady or open to suspicion by themselves. It is too much to attribute this sort of power to one of the three members of the Commission.
22. Similarly lame is the allegation that Dr. Malaowala was to retire after some time and he had induced his colleague to oblige him. It is too much to believe that a member of the Public Service Commission would be in a position to dominate the free will of another member of this august body. On the contrary, the presumption should be, unless proved clearly otherwise, that all members of such bodies like those of the High Court act in an independent and impartial manner and one is not amenable to the influence of the other. So the fact that Dr. Malaowala was to retire somewhere in June 1979 is no circumstance to show that he must have managed with the Government to get the post advertised, so that his son comes to be selected before he retires or with his colleague to get his son selected for appointment.
23. It was then alleged that the Deputy Director of Medical Education and Research wrote a letter, at page 55 of the petition, informing the respondent No. 3 that the post was required to be filled in immediately. The post had fallen vacant because of the resignation of Dr. Hajirawala and if the Deputy Director, who works in the same office in which the Director himself works, informs the respondent No. 3 that he should not have addressed a direct communication to the Public Service Commission, an independent body, and that finalisation of resignation case of Dr. Hajirawala might take some time and it was desirable to fill up this post immediately, there is no case even for a remote suspicion.
24. It was then alleged that even the respondent No. 5 in his affidavit at page 49 had stated that the procedure with the Dental College, Ahmedabad was that the Dean would inform the vacancy to the Director, who in his turn would move the Government for getting the post advertised through the Public Service Commission and Mr. Shah urged that when the contesting respondent No. 5, Dr. Malaowala himself admitted this fact, the court should treat this as almost a mandatory procedure, I have already said above that this so-called notifying of the post as vacant and till then the post not falling vacant are the notions developed in this Dental College, Ahmedabad, which have nothing to do with the factual vacancy, which should be filled in so that the students are not deprived of the benefit of a tutor, whose services they need in the course of their studies.
25. It was then alleged that Dr. Modi, who was invited to take part in the interview, was a close friend of the respondent No. 5, Dr. Malaowala and that the respondent No. 5 had gone to Bombay in advance to contact him. Both Dr. Modi and the respondent No. 5 have denied this. Both of them have stated that barring the general acquaintance of the people in the same profession, they had no special relationship with each other and there is no reason for me not to believe their solemn statements on those points.
26. It was then alleged that for the first time an expert was invited at the interview for the post of a tutor in Orthodontia. Here also, the Secretary of the Commission has clarified the whole position. As a man of that special branch was to be selected, an expert was invited specially. The Commission has made it clear that they borrow the names of the celebrated examiners in various subjects from the Gujarat University and out of the names with them, the Secretary selects two names and places them before the Members of the Commission, who select one of the two. Various experts were invited for the various posts of tutors, selection for which was to be held on 25-4-79. The original proceedings in that regard were brought to my notice and it, therefore, appeared clear that inviting of an expert in the case of the post of a tutor in Orthodontia was not a specially cooked up occasion by the respondent No. 5. in order to oblige his son, the respondent No. 4. Good many experts were invited for different subjects and the affidavits of the respondent No. 5, Dr. Modi and also that of the Secretary of the Commission amply bear out that Dr. Modi is a reputed All India level Surgeon in Orthodontia and a court of law would not be ready to draw an adverse inference against the credit and impartiality of such people, known and celebrated in their spheres.
27. It was then alleged that the respondent No. 5 was the Chairman of the Commission in the leave vacancy or Mr. Solanki. In my view, there is hardly any relevance of this factor. By analogy, I would say that the Chief Justice of the High Court never is in a position to influence the judgment of other Judges. Similarly, in the case of this august body, like the Public Service Commission, the fact that one of the members holds the post of a Chairman, will not be a factor for jumping to the conclusion that the Chairman holds any position substantially higher than that of the members, except for some administrative purpose and except for the purpose of giving a casting vote in the matter of equal division, which case ordinarily would not arise in the case of Gujarat Public Service Commission, having three members.
28. It was further alleged that the Commission constitutes of all its members and when Mr. Chaudhary was the only member of the Commission the at the time of the interview for the post of a Tutor in Orthodontia, no commission can be said to have worked on the occasion. Rule 19 of the Gujarat Public Service Commission Procedure Rules, 1962 already referred to it, is a clear answer to it. Looking to the diversity of the activities and good number of interviews to be held by the Commission, it is inevitable for the Commission to assign the work to a sub-committee of a member or two so that the work is expeditiously dealt with.
29. It was lastly urged that as per the practice of the Commission, Head of the Dapartment is invariably invited to participate in the interviews. The Head of the Department concerned being the Director of Medical Education and Research was normally expected to be the at the interview, but instead (he Deputy Director had been allowed to remain the and this was also said to be vitiating the selection. The affidavit of the Secretaty of the Commission has proved that it is the usual practice of the Commission that if the Head of the Department is not able to attend, he deputes the person next to him in hierarchy and such a deputy always represents the Government at the time of interview. There is no reason for me not to accept the word of the Security of the Commission on this point and I, therefore, held that there is a consistent long-standing practice of the Commission to permit the second man of the Department to depute for the Head of the Department. It was then alleged that the Dean of the College was usually invited at such interviews, but that fact has been denied and the cutter rests there.
30. The only three grounds that in my view should go to vitiate the selection, if I had to deal with the question, would be the participation of the respondent No. 5 in selecting Dr. Modi as one of the two names proposed by the Secretary to work as an expert at the time of selection. The original resolution was brought to my notice and it showed that the Chairman Mr. Solanki and the respondent No. 5 took a decision to select Mr. Modi and not to approve of the second name suggested by the Secretary. It is no doubt true that the ultimate decision to select or not to select rests with the Commission, but when an expert is invited to assist, his word or advice would go a long way in the matter of selection. So it could be said safely that selection of an expert is one of the vital steps in the process of interview. Dr. Malaowala, being a responsible member of this Public Service Commission, should not have taken part in these proceedings of selecting the name for the purpose of being present at the interview as an expert. It is rightly said that Caeser's wife must be above suspicion. Higher the public office a man occupies, the greater should be the circumspection and vigilance on his part so that bad name is not attracted to such high office. The petitioner cannot be blamed if he entertained a reasonable suspicion that Dr. Malaowala did take an active part in composing the body of persons to remain present at the interview.
31. The second ground was his (Dr. Malaowala) being a party to the constitution of one-man Committee. When the respondent No. 5 was to work with other member Mr. Chaudhary at the time of selection of other posts of tutors on that day, and when it was taken on hand that in this solitary selection for the post of a tutor in Orthodontia Dr. Malaowala would not participate, the only conceivable discussion that can be presumed to have taken place must be that Dr. Malaowala told his colleague that as at that interview his son was to appear, he would not take part in the selection and that only Mr. Chaudhary should constitute one man Committee for the purpose. This also is clearly symptomatic of the impropriety of action by Dr. Malaowala, the respondent No. 5.
32. Last but not the least is his approving of or agreeing, in terms of Rule 19 of the Gujarat Public Service Procedure Rules to the selection made by Mr. Chaudhary. Rule 19 in this connection requires to be quoted:
19. The Commission may appoint a committee of one or more of their members to transact any business which the commission is competent to transact. The proceedings of such committee shall be circulated amongst all the remaining members and if agreed to by the majority of the members of the Commission shall become the decisions of the Commission.
The decision to select the respondent No. 4 and to reject the petitioner is the decision, to which Dr. Malaowala is a party by agreement. The original resolution also was brought to my notice very fairly by the Commission and it did show that Dr. Malaowala had agreed to that resolution by putting his signature on the proceedings of the one-man Committee. This is also the improper participation by Dr. Malaowala. It was urged by Mr. Takwani as well as by Mr. Shelat that as there were only two members of the Commission at that time acting, it was inevitable for Dr. Malaowala to express his assent or dissent to the decision of the one-man Committee. I do not agree. The matter could certainly brook some delay till the arrival of the Chairman Mr. Solanki. Even if the Commission consists of three members, there is no obligation on Dr. Malaowala to take part in each and every decision. An absentee member is to be ignored for the purpose of the work of the Commission. A member, who is because of some factor not able to take part in the proceedings, can very well abstain from voting. I would have, therefore, in the facts and circumstances of the case, held that the petitioner could have reasonably felt that his rejection by the Commission and selection of the respondent No. 4 by the Commission were the outcome of the bias of the respondent No. 5 for his son, the respondent No. 4.
33. Above finding that has been recorded by me is only an alternative finding recorded by me for dual purposes. If the matter goes to the higher forum, it may have the advantage of my assessment of the situation. The second purpose that is in my mind in dealing with this alternative is to lay down a sort of a principle for the proper working of the Commission. I hope that in future when any Member of the Commission is directly or indirectly interested in any interview, he shall so behave and shall abstain from associating with any stage of the proceedings that no scope is allowed for any suspicion, much less a reasonable suspicion like the one in the present case. The law on this point is quite well laid. The court is not required to record a positive finding about the bias having been occasioned. What is required is the reasonable apprehension of bias, and I would unhesitatingly hold that this participation of Dr. Malaowala in three important stages of the selection procedure is sufficient to raise a reasonable apprehension of any reasonable man about the bias having been occasioned at that time.
34. The result is that the petition fails and stands rejected. Rule is discharged with no order as to costs.
Interim relief granted by this Court shall continue to remain in operation for the period of three weeks from to-day, to enable the petitioner to have further recourse, which Mr. Shah stated the petitioner wanted to pursue.