Mere Facebook Photos Don't Show Personal Friendship, 'Degree Of Relationship' Relevant To Determine Reasonableness Of Apprehension Of Bias: Kerala HC
The Kerala High Court recently observed that where reasonable likelihood of 'bias' in a selection process is alleged on the ground of relationship, the degree of closeness or 'nearness' of the relationship between the parties ought to be 'so great' as to give a reasonable apprehension of bias. The Division Bench composed of Justice P.B. Suresh Kumar and Justice C.S. Sudha while observing so,...
The Kerala High Court recently observed that where reasonable likelihood of 'bias' in a selection process is alleged on the ground of relationship, the degree of closeness or 'nearness' of the relationship between the parties ought to be 'so great' as to give a reasonable apprehension of bias.
The Division Bench composed of Justice P.B. Suresh Kumar and Justice C.S. Sudha while observing so, held that in the instant case, a mere relationship between the candidate selected (9th respondent) and a member of the Selection Committee (8th respondent), would not be sufficient to assume bias.
It added that production of Facebook photographs and the fact that the 8th respondent is the HoD of the Department in which the 9th respondent was working as a Guest Lecturer, also would not automatically lead to the conclusion that there was personal friendship between the two.
It was further added in this context that if the above were accepted, then the petitioner's case would also have to be scrutinized since Professor and Head, Department of Environmental Sciences, University of Kerala (11th respondent herein), who was one of the three subject experts who had evaluated the performance of the petitioner and the 8th respondent in the interview and awarded marks, had issued the Conduct and Experience Certificates to the petitioner.
"A person who challenges the selection process on the ground that one of the members of the Selection Committee is closely associated with the successful candidate, has no qualms when it comes to her own case when it is pointed out that one of the members of the Selection Committee, i.e., the additional 11th respondent is known to her and has issued her character certificate as well as the certificate of experience. Had the petitioner been successful, probably the 9th respondent would have also raised a similar contention of bias and favoritism", it was observed.
According to the initial writ petition that had been filed by the unsuccessful candidate, it was contended that she had been deliberately awarded abysmally low marks in the interview when compared to the 9th respondent, despite having secured 85 marks out of 100 for her academic record, research performance and teaching experience, while the respondent had only been awarded 75 marks out of 100 for the said components.
It was contended by Advocates Kaleeswaram Raj, Varun C. Vijay, A. Aruna, and Maitreyi Sachidananda Hegde, on behalf of the petitioner that the selection process was vitiated by bias and favoritism, as the 8th and the 9th respondent herein shared a close relationship. Hence, the writ petition filed sought a declaration to the effect that the appointment of the 9th respondent was unconstitutional, illegal and non-est in the eye of law, and also for awarding fair marks to the petitioner in the interview and also to appointing her to the said post.
While these averments were opposed by the respondents represented by the Standing Counsel of Kerala University, Advocate Thomas Abraham, Advocates Sathosh Mathew, Shafik M.A., and Senior Government Pleader, A.J. Varghese, the Single Judge Bench had found that the appointment of the 9th respondent was indeed vitiated in law and set aside the same. However, no preferential right was granted to the petitioner to seek appointment. On the other hand, the respondents were granted the liberty to advertise for the post afresh. The respondents were also not precluded from creating another post if they found the petitioner eligible.
It was on the ground that the Single Judge Bench had not ordered for awarding of fair marks in the interview for the petitioner, and appointed her instead to the post, that the instant writ appeal was filed. Along with the same, writ appeals were also filed by the 9th respondent for setting aside his appointment, and by the respondent authorities for having found the appointment of the 9th respondent as vitiated in law.
It was further contended by the counsels for the petitioner-appellant in the writ appeal that the 8th respondent herein had influenced the other members of the Selection Committee, due to which the 19 marks had been awarded to the latter while the former secured only 8 marks. It was contended that since the 8th respondent was acquainted with the 9th respondent, the former should not have been made part of the Selection Committee. Statute 4(2) of Chapter 3 of the Kerala University First Statutes, 1977 which stipulates that, "No member of the Committee who is an applicant for the post or is related to or interested in any of the applicants for the post shall take part in the deliberations of the Committee, so far as that post is concerned", was also relied upon by the petitioner-appellant to buttress their argument.
On the other hand, it was submitted on behalf of the respondents that the said 8th respondent had to mandatorily be part of the Selection Committee in terms of Clause 5.1 of the UGC Regulations deal with the composition of the said Committee, and since the said person was the HoD of the Department, he could not be avoided. Additionally, it was also contended on behalf of the Management that the quorum had been fixed not to enable any members to recuse, but to ensure a minimum of 5 members to constitute a Selection Committee. The Management had also contended that the petitioner's allegation with respect to a letter written by 'his Beatitude Moran Mor Baselios Cardinal Cleemis Catholicos Major Archbishop of Trivandrum' to the Manager of the College (the 5th respond herein) as having served as another factor of influence was also not unusual, since it was quite normal for the Vicar of a Church to write such letters on behalf of a member of his Church.
For the purposes of ascertaining whether there was actual bias and nepotism in the instant case, the appellate Court perused the authorities and precedents in this regard, which pointed towards there being evidence to satisfy 'real likelihood of bias'.
Additionally, it was found by the Court that Clause 4(2) of the Statute would come into play only if a member of the Committee is 'related to or interested' in any of the candidates, and only then would the said person have to recuse himself.
The Court also took note of the Note to Clause 4.0 of the UGC Regulations, 2018 which deals with Direct Recruitment and Clause 4.1.I which deals with the eligibility conditions, whereby it has been stipulated that the academic performance of candidates would only be considered for shortlisting them for the interview, while selections shall only be based on the performance during the interview. The said note had also not been challenged by the petitioner-appellant.
Having regard to the factual circumstances, the Court also could not find fault with the letter written by the Archbishop of Trivandrum, since the person to whom it was addressed, namely the 5th respondent, was not even a member of the Selection Committee. Further, it was also found that marks for the interview were awarded by the subject experts, and not the other members of the Selection Committee.
On these grounds, accordingly, the appeal filed by the petitioner-appellant was dismissed, while allowing the appeals preferred by the 9th respondent and by the other respondent authorities for having found the appointment of the 9th respondent as vitiated in law. The impugned judgment of the Single Judge was also set aside.
Case Title: Manager, Malankara Syrian Catholic Colleges & Ors v. Dr Reshmi P.R. & Ors and other connected cases
Citation: 2022 LiveLaw (Ker) 468