Case: J. Mohapatra and Company and Another Vs. State of Orissa and Another

MADON, J. 1. The destiny of a nation rests with its youth. As we shape its mind and mould its character, so do we fashion our countrys progress, prestige an d prosperity. Wordsworth truly said, "The Child is father of the Man", and Alexander Pope was equally right in saying in the first of his Moral Essays-Epistle I to Sir Richard Temple, Lord Cobham:"Tis Education forms the common mind, Just as the Twig is bent, the Trees inclined." 2. It is, therefore, essential for a country to have a proper educational system. The general pattern of education in our country is, however, the traditional one of studying from prescribed text-book s, attending lectures based on such books and answering questions in examinations set from them. The study of text-books is often supplemented by reading books which are kept in school and college libraries. These books may be on various subjects-literature, history, art, science, geography, and even works of fiction. General reading is as essential for a student as it is for any man, for it is reading which broadens the mind and widens the horizon. It was for this reason that Bacon said in his essay, Of Studies, "Reading maketh a full man", General reading is, therefore, as important as studying from prescribed text-books if the students of today are to become worthy citizens of tomorrow. 3. The selection of these books-both text-books and books for general reading to be kept in school and college libraries-is thus a matter of vital importance to the imparting of proper education. Such selection must necessarily depend upon the ability and fitness for the purpose of those who are charged with that responsibility. This question has come up for our consideration in this Appeal by Special Leave from the judgment and order of the High Court of Orissa dismissing, with no order as to costs, the petition under Article 226 of the Constitution filed by the Appellants.There does not exist any statutory rule or regulation in the State of Orissa prescribing the method for selection of books for general reading to be kept in school and college libraries. The State Government, however, periodically issues administrative instructions in the form of Government Resolutions constituting committees and laying down the procedure for selecting books. Broadly speaking, three committees are constituted, namely, an Assessment Sub- Committee, a Distribution Sub-Committee and a Purchase Committee. Government officials as well as non-officials are appointed as members on these committees and sub-committees. E ach year the State Government makes available a specific sum for purchase of books for libraries to be distributed among individual schools and colleges. The procedure followed is that each year the Member-Secretary of the Purchase Committee calls upon publishers and authors by advertisements given in local newspapers to submit books for consideration. The Assessment Sub-Committee then considers the books so submitted and thereafter recommends a list of books which, according to it, are suitable for general reading by school and college students. The Purchase Committee considers the recommendations made by the Assessment Sub-Committee and prepares a final list. It is open to the State Government to reject any book out of the list so submitted without giving any reason and the decision of the State Government regarding the assessment, selection, purchase and distribution of books is made final. Though a separate Government Resolution is issued each y ear, by and large the same pattern and procedure are maintained and only a few committee and sub-committee members are changed and new members appointed in their place. The selection of books for the years 1980, 1981 and 1982 was made in this fashion. Admittedly, some of the members of the Assessment Sub- Committee were themselves authors of books and some of the books written by them were selected and purchased. The annual grant sanctioned by the State Government for this purpose for the years 1980, 1981 and 1982 was Rs. 5, 00, 000. So far as the year 1982 was concerned, this annual grant fell short of the requirement by almost 50 per cent. Accordingly the Purchase Committee restricted the list of 466 books out of 1, 718 books submitted for selection, but as further funds became available the Government decided to select more books and accordingly constituted a Committee under the Chairmanship of Director of Public Instruction (Schools), Orissa.This Committee selected a supplementary list of 105 books out of the said 1, 718 books which had been submitted for selection. 4. There were unprecedented floods and cyclones in the months of August and September 1982 and a large number of schools and colleges suffered in this calamity and the libraries of many schools and colleges were washed away. The Central Government thereupon, as part of its relief programme for the State, gave grants to the State during February and March 1983 aggregating to Rs. 45, 00, 000 for the purchase of books for the libraries of non-governmental schools and colleges. This was a time-bound grant to be utilized by June 1983. For this reason, the State Government felt that it was not feasible to ad opt for selection of books the procedure usually followed as it took a considerable time and, therefore, took a decision on April 5, 1983, to utilize the grant made by Central Government in purchasing books out of the books selected for the years 1980, 1981 and 1982 the said supplementary list of 105 books. Accordingly, a meeting was convened on April 13, 1983, to consider the selection of books to be purchased. There is some controversy with respect to who convened the s aid meeting, who were present at that meeting and what transpired in that meeting, but we find it unnecessary to go into this controversy. Suffice it to say that books out of those selected for the years 1980, 1981 and 1982 the said supplementary list were selected at this meeting. 5. Thereupon the Appellants who are publishers filed a petition under Article 226 of the Constitution against the State of Orissa and the Director of Public Instruction, Orissa, to quash the lists of books selected for the years 1980, 1981 and 1982 the State Governments said decision with respect to purchasing books out of the cyclone and flood relief grant made by the Central Government inter alia on the ground of bias on the part of some of the members of the Assessment Sub-Committee whose books were submitted for selection. This writ petition was heard along with a similar writ petition filed by the Orissa Publishers and Book Sellers Association. The High Court by a common judgment delivered on August 10, 1983, dismissed both these writ petitions and made no order as to the costs thereof. It is against this judgment and order of the Orissa High Court that the Appellants have approached this Court by way of Appeal by Special Leave.The High Court rested its decision on the following five grounds, namely:(1) For the year 1980-81, the First Appellants, a partnership firm, had not submitted any book pursuant to the advertisement issued by the State Government. For the year 1981-82, it had submitted twenty-four books out of which one was selected. For the year 1982-83, it had submitted twenty- nine books out of which six were selected. Having submitted books for selection and after being either partially successful in getting some books selected or having failed in getting books submitted by it selected, the First Appellant could not impugn the selection of books on the ground of bias on the part of the members of the As sessment Sub-Committee. The Second Appellant had not submitted any book for selection pursuant to the advertisement in this behalf issued by the State Government for any of the years in question and, therefore, was not a "person aggrieved" by any of the selections made for those years (2) Considering the exigency of the situation, the procedure followed by the State Government in setting up a committee for the selection to be made for purchase of books from the grant made by the Central Government was neither arbitrary nor against public interest inasmuch as the procedure usually followed was laid down only by executive directions and was not a statutory procedure and could, therefore, be changed by the State Government . (3) The final decision approving the selection of books was that of the State Government for it had the right to reject any book recommended by the Assessment Sub-Committee and, therefore, the fact that some members of the Assessment Sub-Commit tee had also submitted their books for approval did not matter for the role played by an individual member of the Assessment Sub-Committee was insignificant and did not and could not influence the decision either of that Sub- Committee or of the St ate Government. (4) The presence of Government officials as members of the Purchase Committee and the two Sub-Committees was required by the Government Resolution constituting the Committees and Sub-Committees and the fact that some of these Governmental officials had also submitted books for selection could not invalidate the selection made on the ground of bias for the doctrine of necessity applied in their case. (5) No relief could be granted in respect of the books selected for the years 1980, 1981 and 1982 inasmuch as the books selected for those years had already been purchased. 6. We are unable to follow the reasoning behind the first ground upon which the High Court rested its decision. It app ears to us paradoxical that when a person has submitted books for selection, it is to be said that he has waived the objection which he had to the constitution of the Sub- Committee and that when a person had not submitted any books for selection it is to be said that he is not a person aggrieved. To say so would be a contradiction in terms. If the reasoning of the High Court were correct, the sequitur would be that nobody would be able to challenge any selection of books, for a person who challenges the selection must either be one who has submitted a book or books for selection or one who has not submitted any book for selection. In our opinion, the High Court was not right in the view it took. Merely by submitting books for selection of which some might have been selected, a person cannot be said to have waived the objection which he may have to the constitution of the committee which selects the books. Similarly, merely because a person does not submit any book for selection, it cannot be said that he is not a person aggrieved. Today, the law with respect to locus standi has considerably advanced both in this country and in England and in the case of public interest litigation it is no t necessary that a petitioner should himself have a personal interest in the matter. It is unnecessary to refer to the decisions of this Court on the point or to dilate further upon it. We may, however, mention that at the hearing of this Appeal before us this contention was not raised on behalf of the Respondents.So far as the second ground given by the High Court for arriving at its decision is concerned, we are in agreement with the view which it took. There were no statu tory rules or regulations with respect to selection of books and the selection was done each year as an administrative measure. It was, therefore, open to the State Government to change both the constitution of the committee and sub-committees as a lso the procedure for selecting books when books had to be purchased from the grant given by the Central Government. The grant given by the Central Government had to be expended within a particular period. The procedure normally adopted by the State Government would have taken more time than what the time-bound grant of the Central Government would have permitted. The State Government was, therefore, justified in setting up a committee for selecting books to be purchased from the Central Government grant in the manner in which it did. There is, however, some controversy as regards the fact whether any publishers were present at the meeting of that committee. According to the Appellants, some publishers were present at that meeting and took part in the deliberations. According to the counter affidavit filed by the President of the Orissa Publishers and Book-Sellers Association, a representative of that Association was called in at the end of that meeting to ascertain whether the said Association was prepared to shoulder the responsibility for arranging the timely supply of books and the said representative did not take part in the proceedings of the said meeting nor was he present at the deliberations thereof. A copy of the minutes of the said meeting which has been annexed to the Petition for Special Leave to Appeal filed by the Appellants bears out this fact. According to the said minutes, it was decided at the said meeting that the publishers would pre pare a list of books to be supplied to different schools in different lots within the amount sanctioned for each category of schools and that the total number of books for each title would be almost equal and that the publishers would submit the list of such books for approval at the level of the directorate. It is further recorded in the said minutes that the said Association would take the responsibility of supplying the books in packets in the office of the concerned au thorities by the specified dates. The urgency of the situation demanded that the books which were selected should be available for supply and, therefore, there could not be anything wrong in asking a representative of the said Association to remain present.It is, however, unnecessary to go further into this controversy for the real question in this Appeal is of far greater importance. That is the question of bias on the part of some of the members of the Assessment Sub-Committee. This question has been answered against the Appellants and forms the subject-matter of the third and fourth grounds on which the High Court rested its decision. Nemo judex in causa sua, that is, no man shall be a judge in his own cause, is a principle firmly est ablished in law. Justice should not only be done but should manifestly be seen to be done. It is on this principle that the proceedings in courts of law are open to the public except in those cases where for special reason the law requires or aut horizes a hearing in camera. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome. This principle applies not only to judicial proceedings but also to quasi-judicial and administrative proceedings. The position in law has been succinctly stated in Halsburys Laws of England, Fourth Edition, Volume I, Para 68, as follows:"Disqualification for financial interest-There is a presumption that any direct financial interest, however small, in the matter in dispute disqualifies a person from adjudicating. Membership of a company, association or other organization which is financially interested may operate as a bar to adjudicating, as may a bare liability to costs where the decision itself will involve no pecuniary loss." 7. In the case of A.K. Kraipak and others v. Union of India and Others, (1) a list of State Forest Officers prepared by the S election Board for appointment to posts in the senior and junior scales in the Indian Forest Service was set aside by this Court on the ground that the officiating Chief Conservator of forests, whose name was placed at the top of the list, was a member of the Selection Board even though he was not present at the time his name was considered for selection and even though the Selection Board was a recommendatory body and the list prepared by it was to be considered first by the Home Ministry and then by the Union Public Service Commission by whom the final recommendations were to be made. The Court held that the rule that no man should be a judge in his own cause was a principle of natural justice and applied equally to the exercise of quasi-judicial as well as administrative powers.In hardly requires any argument to show that a person who has written a book which is submitted for selection, either by himself or by his publisher, interested in the matte r of selection. Authors get their books published by publishers or may themselves publish them. In either case, they stand to benefit financially. In the first case, by getting royalty from publishers and in the second case, by making profits o n the sale of books if the amount realized exceeds the cost of publication, or if the sales are not to that extent, by reducing the cost incurred in the publication of the book. The Appellants have filed statements showing the finan cial benefit which accrued to those members of the Assessment Sub-Committee whose books were selected. To give one instance from these statements, in the case of a member of the Assessment Sub-Committee who was a Government official and whose books were selected, books of the aggregate value of Rs. 4, 000 were purchased in the year 1980, of the aggregate value of Rs. 6, 500 in the year 1981, and of the aggregate value of Rs. 72, 500 in the year 1982. It was contended in the counter affidavit filed on behalf of the Respondents that the amount of royalty received by these member-authors was not much. This fact is immaterial. The amount of royalty depends on the agreement between the author and the publisher as also upon the sale price of the book. The fact, however, remains that by the books being selected and purchased for distribution to school and college libraries the sales of those books had gone up and correspondingly the royalty received by the author-members also went up and such author-members thus received financial benefit. It is no answer to say that an author-member is only one of the members of the Assessment Sub-Committee and that the ultimate decision rests with the State Government which may r eject any book out of the list of approved books. A similar argument was rejected by this Court in Kraipaks case. The State Government would normally be guided by the list approved by the Assessment Sub-Committee. Further, to say that such author-m ember is only one of the members of the Assessment Sub-Committee is to overlook the fact that the author-member can subtly influence the minds of the other members against selecting books by other authors in preference to his own. It can also be that books by some of the other members may also have been submitted for selection and there can be between them a quid pro quo or, in other words, you see that my book is selected and in return I will do the same for you. In either case, when a book of an author-member comes up for consideration, the other members would feel themselves embarrassed in frankly discussing its merits. Such author-member may also be a person holding a high official position whom the other members may not wan t to displease. It can be that the other members may not be influenced by the fact that the book which they are considering for approval was written by one of their members. Whether they were so influenced or not is, however, a matter impossible to determine. It is not, therefore, the actual bias in favour of the author-member that is material but the possibility of such bias. All these considerations require that an author-member should not be a member of any such committee or sub- committee.There is, however, an exception to the above rule that no men shall be a judge in his own cause, namely, the doctrine of necessity. An adjudicator, who is subject to disqualification on the ground of bias or interest in t he matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In such cases th e principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down. Thus, in The Judges v. Attorney-General for Saskatchewan, ( 1) the Judges of the Court of Appeal were held competent to decide the question whether Judges of the Court of Appeal, of the Court of Kings Bench and of the District Courts of the Province of Saskatchewan were subject to taxation under the Income-tax Act, 1932, of Saskatchewan on the ground that they were bound to act exnecessitate. The doctrine of necessity applies not only to judicial matters but also to quasi-judicial and administrative matters. The High Court, however, wrongly applied this doctrine to the author-members of the Assessment Sub-Committee. It is true, the members of this Sub-Committee were appointed by a Government Resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of the Government of Orissa, and the Director, Higher Education, etc. There was, however, nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its Resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such non-official author-members from resigning from the committee on the ground of their interest in the matter.So far as the fifth and last ground on which the High Court rested its decision is concerned, it must be held that the High Court was justified in refusing to grant relief on this ground in respect of the books selected for the years 1980, 1981 and 1982. We are also faced with a similar fait accompli as the High Court was, not only in respect of the books selected and purchased for those years but also with respect to the books selected and to be purchased from the Central Government grant because these books have also by now been purchased and distributed among the various school and college libraries. All that we can, therefore, do in this Appeal is to lay down guide-lines which should be followed in the future in selecting not only books for libraries in educational institutions but also in prescribing text-books and in constituting committees for these purposes. 8. It was, however, submitted on behalf of the Respondents that it was not necessary for this Court to lay down any guide-lines inasmuch as after the Special Leave to Appeal was granted in this case, the State Government had issued a fresh Government Resolution dated November 24, 1983, whereby it constituted a new Purchase Committee and Assessment Committee consisting of Government officials and non- official members, clause (8) of which Resolution satisfied the principles of fair play and natural justice by eliminating the possibility of any author -member of the committee influencing author-members in selecting his book. Clause (8) of the said Resolution reads as follows:"No member of the Purchase/Assessment Committee shall remain present in discussion while considering a book in which he/she is interested as author/editor/publisher." 9. In the alternative, it was submitted that if the Court desires to lay down guide-lines, it should do so by adopting clause (8) of the said Government Resolution dated November 24, 1983.We are unable to accept either of the above two submissions. Several books would come up for consideration before the committee, one or more of them by one of the members and the other or others by some o f the other members. Mere non-participation in the discussion by the member concerned or even his withdrawing from the deliberations of the committee while his or her book or books are being considered is not sufficient because th e evil of quid pro quo cannot be eliminated by this. Members deliberating would bear in mind that the turn for selecting their books would also come and the concerned member who had not participated or had withdrawn would not then be favourably inclined to select their books. 10. It was suggested on behalf of the Appellants that in laying down the guide-lines we should provide that if a publisher has published a book written by one of the members of the committee or sub-committee concerned with the selection of books, such publisher should not be permitted to submit any book for selection even though no book by that author-member had been submitted for selection. It was urged that in such a case the author-member would be favourably inclined to select or approve the book of that publisher in order to maintain good relations with him. We find this suggestion to be unrealistic. Many a person falls a victim to that disease which Jnvenal called cacoethes scriben di(the writers itch), for as Byron said in his English Bards and Scottish Reviewers:"Tis pleasant, sure, to see ones name in print; A books a book, although theres nothing int." 11. It would, therefore, be unfair to prohibit p ublishers from submitting books for selection merely because they had at one time published a book written by one of the members of the committee or sub-committee concerned with the selection of books The number of publishers is large but good publishers are few and such publishers will, therefore, be publishing the majority of books. To lay down such a guide-line would be to eliminate a large number of books which may be worthy of selection.In the light of the above discuss ion we lay down the following guide-lines to be adopted by the State Government, governmental authorities and all committees constituted for the selection to textbooks as also books for libraries of educational institutions whether such committee be called a committee or sub-committee or be described by some other nomenclature:(1) The committee should not consist merely of Government officials or have a preponderance of Government officials on it, for Government officials, with few exceptions, have by and large only administrative experience. In addition to Government officials, therefore, the committee should also consist of men eminent in the particular fields of knowledge for which the books are to be s elected. Non-official members should not be appointed as a matter of political considerations or on party lines but should be appointed only on merit. (2) No member of the committee, a book written or edited by whom is submitted either by himself or his publisher for approval or selection; should continue to remain a member of the committee. If he is a non-official member, he should submit his resignation from the committee on this ground. If he is a Government official, he should intimate to the Government or the authority appointing him on that committee the fact that a book written or edited by him has been submitted for approval or selection and the Government or the concerned authority should substitute in place of such member another person, whether official or non- official, none of whose books has been submitted for approval or selection. (3) No publisher of books or his representative should be appointed a member of the committee or be allowed to remain present at or participate in the deliberations of the committee.The guide-lines we have laid down above are not intended to be exhaustive but contain the bare essentials of what is required. We are conscious that no guide-lines laid down by a court can ensure the selection of really worthwhile books. This must necessarily depend upon the social consciousness and moral fibre of the members of the committee. Similarly, no judgment of a court can eliminate the evil of behind-the-scene influence. Here, one must perforce trust the sense of responsibility of the members of the committee in the discharge of the important duty with which they are entrusted.

Decision:
1[ds]It would, therefore, be unfair to prohibit p ublishers from submitting books for selection merely because they had at one time published a book written by one of the members of the committee or sub-committee concerned with the selection of books The number of publishers is large but good publishers are few and such publishers will, therefore, be publishing the majority of books. To lay down such a guide-line would be to eliminate a large number of books which may be worthy of selection.In the light of the above discuss ion we lay down the following guide-lines to be adopted by the State Government, governmental authorities and all committees constituted for the selection to textbooks as also books for libraries of educational institutions whether such committee be called a committee or sub-committee or be described by some other nomenclature:(1) The committee should not consist merely of Government officials or have a preponderance of Government officials on it, for Government officials, with few exceptions, have by and large only administrative experience. In addition to Government officials, therefore, the committee should also consist of men eminent in the particular fields of knowledge for which the books are to be s elected. Non-official members should not be appointed as a matter of political considerations or on party lines but should be appointed only on merit(2) No member of the committee, a book written or edited by whom is submitted either by himself or his publisher for approval or selection; should continue to remain a member of the committee. If he is a non-official member, he should submit his resignation from the committee on this ground. If he is a Government official, he should intimate to the Government or the authority appointing him on that committee the fact that a book written or edited by him has been submitted for approval or selection and the Government or the concerned authority should substitute in place of such member another person, whether official or non- official, none of whose books has been submitted for approval or selection(3) No publisher of books or his representative should be appointed a member of the committee or be allowed to remain present at or participate in the deliberations of the committee.The guide-lines we have laid down above are not intended to be exhaustive but contain the bare essentials of what is required. We are conscious that no guide-lines laid down by a court can ensure the selection of really worthwhile books. This must necessarily depend upon the social consciousness and moral fibre of the members of the committee. Similarly, no judgment of a court can eliminate the evil of behind-the-scene influence. Here, one must perforce trust the sense of responsibility of the members of the committee in the discharge of the important duty with which they are entrusted.