WP(C) 904/2010 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY In assailment is the process of selection initiated by an advertisement dated 20.1.2010 on behalf of the respondent No.5, the Dergaon Joynath Tole (for short, hereinafter referred to as ’the Tole’) for filling up a post of Arts Grad uate Teacher thereat. In response to the challenge, this Court while issuing not ice of motion on 5.2.2010, had restrained appointment to the said post without i ts leave. No appointment as such has yet been made. 2. I have heard Mr PD Nair, learned counsel for the petitioner; Mr UK Goswami, learned Standing Counsel, Education Department for respondent Nos. 1 ,2,3 and 4; Mr S Goswami, learned counsel for respondent Nos., 5,6 and 7; Mr P B orthakur, learned senior counsel for the respondent No.9 and Mr R Baruah, learne d counsel for the respondent No. 10. The respondent No.8, inspite of service of notice, has not arranged for his representation in the instant proceeding. 3. The pleadings being complete and urgency having been expressed o n behalf of the parties present, this petition has been taken up for final dispo sal at the admission stage. 4. The respective pleadings portray the versions of the contending parties. In response to the aforementioned advertisement the petitioner and othe rs offered themselves to be assessed for the post. This included the respondent No.10. The interview was held on 29.1.2010 and it was immediately thereafter, ac cording to the petitioner, that she could learn that the entire process had been vitiated by bias, favouritism and nepotism, inasmuch as, the respondent No.8 an d the respondent No. 9 who were members of the selection committee were respecti vely her first cousin and a friend and colleague of her brother. As the petition er was informed that the stage was pre-set for the selection of the respondent N o. 10 for her eventual appointment to the post advertised, she being distressed by the above disclosures submitted a representation on 1.2.2010 before the Direc tor of Higher Education, Assam for his remedial intervention. She has also refer red to newspaper reports highlighting such a vitiation in the process. However, as no step was taken by the authorities concerned to mitigate her grievances, sh e has approached this Court for succour. 5. Respondent Nos. 1,2 and 3 in their affidavit affirmed by the Dep uty Director of Sanskrit Education , Assam admitted the initiation of the proces s and the participation of seventeen candidates in the interview held on 29.1.20 10. The answering respondents have stated that a selection committee was constit uted in terms of Rule 5(2) of the Assam Classical Institutes (Sanskrit and Pali- Prakrit) (Provincialisation) Act, 1996 (for short, hereinafter referred to as ’t he Act’) for the purpose of the selection in hand. According to them, the Commit tee was constituted by seven members including the Chairman and a nominated memb er of the Deputy Director of Sanskrit Education, Assam. They have stated that on an assessment of the interviewed candidates in terms of the guidelines and the norms prescribed, whereas the respondent No. 10 was placed at serial No. 1, the writ petitioner was at serial No. 5. They have maintained that the ultimate sele ction was on the basis of the marking system of the oral interview, academic dis tinctions, experience etc. as comprehended in the guidelines. According to them, there was no evidence relating to the relationship between the respondent Nos. 8,9 and 10, as alleged. They have, however, admitted that the marks in the oral interview were awarded by six members to the exception of the Member- Secretary of the selection committee. 6. Respondent Nos. 5,6 and 7 in their separate affidavit while gene rally affirming the stand of the official respondents have denied the allegation of bias, unfairness or illegality in the selection process. The respondent No. 9 in his separate counter has denied the petitioner’s imputation that he is a bo som friend of the brother of the respondent No. 10 and that both of them had wor ked in Jalukbari Sanskrit College during 2005-07. He has also denied the allegat ion that he is a frequent visitor to the residence of the respondent No. 10. 7. The respondent No. 10 insisted that her selection was free from any illegality and was wholly based on a dispassionate assessment of her suitabi lity gauzed on the measure of the parameters prescribed for the purpose. She als o denied the allegation of bias contending that the same has no basis, more part icularly, in absence of any charge of malafide on the part of the respondent Nos . 8 and 9 in the selection process. 8. The petitioner in her affidavit-in-reply has brought on record a letter of the Public Information Officer, office of the Principal, KK Handique Govt. Sanskrit College to the effect that the respondent No. 9 and the brother o f the respondent No. 10, Sri Sunity Ballav Goswami had rendered services during 21.4.2005 to 28.8.2006 as colleagues in the KK Handique Govt. Sanskrit College w hich was formerly known as the Jalukbari Sanskrit College. 9. Mr Nair, learned counsel for the petitioner has urged that it be ing overwhelmingly demonstrable on the basis of the pleadings on record that the respondent No. 8 is the first cousin of the respondent No. 10 and that the resp ondent No. 9 is a friend of her brother, the selection process is visibly vitiat ed by bias and on that ground alone is liable to be set aside. In support of thi s plea, the learned counsel has drawn the attention of the Court to Clause (7) o f the guidelines acted upon by the selection committee whereunder all members ex cept the Government nominee were allotted 10 marks to be awarded to the candidat es in the oral interview. The Government nominee in terms of the said clause was allotted 20 marks for the purpose. Mr Nair with reference to the comparative ch art of the candidates evaluated has submitted that whereas the respondent No. 9 as the Government nominee had awarded 15 out of 20, the respondent No. 8 awarded 9 out of 10 to the respondent No. 10 which resultantly boosted up her aggregate score so as to be adjudged the first selectee in the process. This, the learned counsel has insisted, was as a direct consequence of the bias of the respondent Nos. 8 and 9 in favour of the respondent No. 10. He has also urged that the ver y admission on the part of the official respondents that one of the members of t he Committee had not awarded marks invalidated the process. Relying on the deci sion of the Apex Court in Rajkumar & Ors. -vs- Shakti Raj & Ors., AIR 1997 SC 21 10, the learned counsel has contended that this vitiating factor of bias and fav ouritism having transpired immediately after 29.1.2010, having regard to the inc urable infirmity generated thereby, the selection process or the exercise undert aken is liable to be annulled. 10. Mr Goswami, learned counsel for the official respondents has aff irmed that not only the selection committee was constituted in terms of Section 5(2) of the Act, but the guidelines for appointment to the post involved, as is contained in the order dated 27.1.2006 (Annexure-R/1 to the affidavit of the res pondent Nos. 1,2 and 3), were also applied to the present process as a whole in which academic merit and good performance in the interview were stressed upon to be the decisive criteria for selection of a candidate. 11. Whereas the learned counsel for the respondent Nos. 5,6 and 7 ha s dittoed the submissions made on behalf of the official respondents, Mr Borthak ur, learned counsel for the respondent No.9 has urged that having regard to the composition of the selection committee, the friendship of the respondent No. 9 w ith the brother of the respondent No. 10, even if assumed, would not invalidate the process as there is nothing on record to show that he exerted influence on t he other members thereof. 12. Mr Baruah toiled to impress upon this Court that in absence of a dequate materials on record alleging bias and malafide against the respondent No s. 8 and 9, no challenge on the basis thereof ought to be entertained by this Co urt in exercise of the power of judicial review. On being queried by the Court, however, he has admitted on instructions that the respondent No. 8 is the first cousin of the respondent No. 10 and that the respondent No. 9 is a friend of her brother. According to him, however, as the petitioner had participated in the p rocess without any cavil, she is estopped from questioning the validity thereof by turning around after completion of the interview. He has also pleaded lack of allegation of malafide to be a disabling factor against the petitioner. In supp ort of his contentions, Mr Borthakur has placed reliance on the decisions of the Apex court in B.N. Nagarjun & Ors. -vs- State of Mysore & Ors., AIR 1996 SC 194 2 and in Dr. G. Sarana -vs- University of Lucknow & Ors., AIR 1976 SC 2428. 13. Noticeably the challenge to the impugned action in the present c ase is founded on the plea of bias and favouritism by the respondent Nos. 8 and 9 in favour of the respondent No. 10. Significantly enough the grounds on which the petitioner entertains this perception, namely, the relationship of the respo ndent No. 8 with the respondent No. 10 being first cousins and the friendship of the respondent No. 9 with her brother are not disputed by the respondent No. 10 . Though an attempt has been made on behalf of the respondent No. 9 to ward off the allegation against him, in the face of the letter dated 11.6.2010 (Annexure- R/2 to the affidavit-in-reply of the petitioner to the affidavit-in-opposition o f the respondent No. 9), it is established that he (respondent No. 9) had been a colleague and a friend of the brother of the respondent No. 10. Respondent Nos. 8 and 9 admittedly were at all relevant times the members of the selection comm ittee constituted under Section 5(2) of the Act. In other words, the petitioner and the respondent No. 10 had appeared before the selection committee of which t he respondent Nos. 8 and 9 were members. It is also an admitted fact that the re spondent No. 9, Jagadish Sarma was a nominee of the Government in the said comm ittee and, thus, was entitled to award marks out of 20 in that capacity for the oral interview. From the extracts of the records pertaining to the impugned sele ction produced by Mr Goswami, learned Standing Counsel, Education for perusal of this Court, it appears that the respondent No. 8 and 9 have awarded marks to th e petitioner and the respondent No. 10 in the oral interview as hereunder: By whom awarded Marks awarded to the petitioner Marks awarded to the respondent No. 10 Respondent No. 8 5 9 Respondent No. 9 5 15 14. The guidelines acted upon by the selection committee outlines th e marking pattern for the academic achievements as follows:- 1. HSLC 1st Division 10 2nd Division 8 3rd Division 6 2. H.S. 1st Division 10 2nd Division 8 3rd Division 6 3. B.A. 1st Class 10 2nd Class 8 3rd Class 6 In addition, a candidate is entitled to be awarded 5 marks if he / she is possessed of ’Major’ in Sanskrit or a ’Shashtri’ title. On account of e xperience, a candidate is entitled to secure 1 mark for each year with a ceiling of 10 marks. 15. Adverting to the comparative chart again, it is visibly clear th at the petitioner is superior to the respondent No. 10 on academic achievements. Whereas the respondent No. 10 was awarded 7 marks towards experience, the petit ioner secured only 1 on that count. Needless to say, the wide margin of marks aw arded by the respondent Nos. 8 and 9 to the respondent No. 10 made a decisive di fference for which inspite of her better score on academic qualification, the pe titioner was relegated below the respondent No. 10. As a matter of fact, the res pondent Nos. 8 and 9 awarded highest marks to the respondent No. 10 in the inter view vis-à-vis the other candidates. This assumes significance in the context of the allegation of bias and, more importantly, the admission on the part of the respondent No. 10 that the respondent No. 8 is her first cousin and the responde nt No. 9 is the friend of her brother. 16. The Apex Court in Dr. G. Sarana (supra) had observed that in cas e where there is an allegation of bias in respect of a member of an administrati ve Board or body, what is to be comprehended is whether there is a reasonable gr ound for believing that he was likely to have been biased. Their Lordships were of the view that what is to be examined is whether there is substantial possibil ity of bias animating the mind of the member against whom the imputation is brou ght and in deciding the question of bias, human probabilities and ordinary cours e of human conduct have to be taken into consideration. Their Lordships observed further that 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 and his bia s is likely to operate in a subtle manner. 17. In other words, opinion of bias is one of perception and the imp ression that a human mind is likely to favour a candidate of choice. The notion is entirely cerebral with or without objective norm or criteria to make it demon strably discernible. The attending facts and circumstances in a given case cumul atively may consolidate the imputation of bias. The tangible factors though rea dily not decipherable, the likelihood of bias, if real, would be a potent vitiat ing factor as held in a plethora of judicial decisions. 18. Is the writ petitioner, in the facts of the present case, debarr ed from taking such a plea, she having participated in the interview? As has bee n propounded by their Lordships in Rajkumar (supra) if a selection process is vi tiated for glaring illegalities in procedure, the principle of estoppel by condu ct or acquiescence has no application. The decision of the Apex Court in B.N. Na garjun (supra) is distinguishable on facts as in that case the member of the con cerned Public Service Commission had withdrawn himself during the segment of the process in which his son-in-law was associated. He having thus abstained from p articipating in the process, the same was held to be not vitiated by the Apex Co urt. 19. In the present factual premise, in view of the recital as herein above the likelihood of bias on the part of the respondent Nos. 8 and 9 in favou r of the respondent No. 10 not only cannot be ruled out but the vice finds manif estation in the marks awarded to her by them in gross excess of others. Though t he body was constituted under an enactment, the respondent Nos. 8 and 9 being fu lly aware of their relationship with the respondent No. 10, did not extricate th emselves from the process relating to her. The comparative chart, in the opinion of the Court, indicates a thrust on their behalf to advance the case of the res pondent No. 10 in the interview so as to make up a difference between her and am ongst others the petitioner vis-à-vis other heads of assessment. 20. Inspite of the repeated queries made by this Court, none of the learned counsel for the respondents has been able to clarify as to why though th e Committee was constituted of seven members only six of them had awarded marks in the interview. However, as marks have been awarded by only six members in gen eral, this omission, if at all it is, would not thereby render the process inval id. The above notwithstanding, vitiation of the process by the bias by responden t Nos. 8 and 9 in favour of the respondent No. 10, in the opinion of this Court, has rendered the selection process incurably infirm and void. 21. In view of the above considerations, this Court has no hesitatio n to interfere with the process. The comparative assessment of the candidates on the basis of which the respondent No. 10 has been adjudged to be the first sele ctee is, thus, set aside. 22. It would now be open for the official respondents to either re-d o the process with consequential steps in terms of this decision of the Court qu a the candidates already in the fray or initiate a fresh exercise for the post i nvolved. 23. The writ petition is allowed in the above terms. 24. Interim order passed earlier stands vacated. No costs.