1437/P

IN THE

HON’BLE SUPREME COURT OF CENATION

AT ROCKISTAN

WRIT PETITION NO._________/ 2018

UNDER ARTICLE 32, READ WITH ORDER XXXVIII OF SC RULES, 2013

-IN THE MATTER OF-

RAJ KUMAR RAO………………………….…….……………….…………PETITIONER

V.

ACPSC……………….………...…………….....…………………...….……RESPONDANT

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL FOR THE PETITIONER

INDEX OF CONTENTS

INDEX OF AUTHORITIES ................................................................................................... 2

FACTS OF THE CASE ........................................................................................................... 3

STATEMENT OF JURISDICTION ...................................................................................... 4

ISSUES FOR CONSIDERATION ......................................................................................... 5

SUMMARY OF ARGUMENTS ............................................................................................. 6

ARGUMENTS ADVANCED .................................................................................................. 7

1) THERE EXISTED PERSONAL BIAS OF COMMISIONER IN CASE OF SELECTION OF

CANDIDATES........................................................................................................................... 7

2) THE DOCTRINE OF ABSOLUTE NECESSITY DOES NOT ARISE IN THIS CASE ................. 9

PRAYER ................................................................................................................................. 10

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MEMORIAL FOR THE PETITIONER

INDEX OF AUTHORITIES

Cases

1. A. K. Kraipak & Ors. v. Union of India & Ors, (1969) 2 SCC 262............................... 8

2. Ashok Kumar Yadav vs. Haryana, 1987 AIR 454 ......................................................... 8

3. Election Commission of India v. Subramaniam Swamy (1996) 4 SCC 104. ............... 10

4. J. Mohapatra & Co. v. State of Orissa, (1984) 4SCC 103 .......................................... 10

5. Javid Rasool Bhat & Ors. Etc vs State Of Jammu & Kashmir And Ors, 1984 SCR (2)

582................................................................................................................................ 10

6. Jiwan K. Lohia v. Durga Dutt Lohia, (1992) 1 SCC 56 ................................................ 9

7. R v Sussex Justices, Ex parte McCarthy, [1923] All ER Rep 233 ............................... 10

8. Rattan Lal Sharma v. Managing Committee & Ors, 1993 4 SCC ................................. 8

9. Secretary to Government, Transport Department v. Munuswamy Mudaliar, 1988 Supp

SCC 651 ......................................................................................................................... 8

10. State of Orissa v. Binapani Dei, AIR 1967 SC 1269 ..................................................... 8

Treatises

1. I.P Maseey, Administrative Law, Annual Survey of Indian Law, Vol. XXXII, 1, 1996

...................................................................................................................................... 10

2. Lord Denning, The Discipline Of Law,(1982) pg.87 ..................................................... 9

3. Saad Abdul Sabti, Administrative Law: Doctrine of Necessity, International Journal of

Law, Volume 3; Issue 3; May 2017; Page No. 59-62 .................................................. 10

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MEMORIAL FOR THE PETITIONER

FACTS OF THE CASE

1. The Republic of Cenation is a constitutional democracy similar to India having a Union

government at the Centre and several states at the provincial level. The country follows
the cardinal principles of separation of powers and has three limbs in its government
i.e. Executive, Legislature and Judiciary.

2. The Executive consists of civil servants which are appointed after a selection on the
basis of an examination called the All Cenation Public Service Examination
[“ACPSE”], organised by the All Cenation Public Services Commission [“ACPSC”],
which is a constitutional body. The head office of the ACPSC is in ‘The Rockistan’,
which is the capital of the country and also the seat of its Supreme Court.

3. For passing the ACPSE, a candidate needs to obtain a minimum score in the written
examination, post which he/she is called for an interview. The Panel for the interview
includes the Chief Commissioner of the ACPSC and six other people who inter alia
include Bureaucrats, Academicians, Members of the Parliament, Businessmen, and
Judges.

4. Mr. Raj Kumar Rao, a candidate who appeared for the ACPSE, conducted on July 2018,
cleared the written examination but was not selected in the interviews, which were to
be conducted in September, 2018.

5. After conducting an independent inquiry and the petitioner found out that Mr. Irfan
Khan, a successful candidate was related to the Chief Commissioner, Mr. Nawazuddin
Siddiqui, as the latter was the Vice Chancellor of his University and had taught him.

6. He has therefore challenged the ACPSE process for the year 2018 citing personal bias
of Commissioner.

7. Hence the petition

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MEMORIAL FOR THE PETITIONER

STATEMENT OF JURISDICTION

It is most humbly submitted that the Petitioner has approached this Hon’ble Supreme Court
under Article 32 of the Constitution of Cenation read with Order XXXVIII of Supreme Court
Rules, 2013 for the violation of Fundamental Rights guaranteed under the Constitution of
Cenation by filing a Public Interest Litigation.

The petitioner most humbly and respectfully submits before the jurisdiction of the present court
and accepts that it has the power and authority to preside over the present case.

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MEMORIAL FOR THE PETITIONER

ISSUES FOR CONSIDERATION

1. WHETEHER THERE EXISTED PERSONAL BIAS OF COMMISIONER IN CASE

OF SELECTION OF CANDIDATES.

2. WHETHER THE DOCTRINE OF ABSOLUTE NECESSITY ARISE IN THIS CASE.

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MEMORIAL FOR THE PETITIONER

SUMMARY OF ARGUMENTS

1. THERE EXISTED PERSONAL BIAS OF COMMISIONER IN CASE OF

SELECTION OF CANDIDATES.

The commissioner was biased while taking the interview of his student, and therefore the
case falls under the doctrine of personal biasness. The court has held again and again if
there is reasonable ground for believing that he was likely to have been biased then this
doctrine will be applied.

2. THE DOCTRINE OF ABSOLUTE NECESSITY DOES NOT ARISE IN THIS CASE.

This is an exception to doctrine of bias. This doctrine of necessity applies in cases where
no other person has authority to decide the matter. The court however has in recent cases
have taken a narrower approach to this doctrine and has changed the doctrine of necessity
to doctrine of absolute necessity. In this case however there was no necessity for the
commissioner to interview his student, as this interview would go against anatural justice.

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MEMORIAL FOR THE PETITIONER

ARGUMENTS ADVANCED

1) THERE EXISTED PERSONAL BIAS OF COMMISIONER IN CASE OF SELECTION OF CANDIDATES

In admininistrative law, rules of natural justice are foundational and fundamental concepts and
principles of natural justice are part of the legal and judicial procedures and are also applicable
to the administrative bodies, in its decision-making process having civil consequences.1 One
of the cardinal principles of natural justice is: ‘Nemo debet esse judex in propria causa’ (no
man shall be judge in his own cause).2 The deciding authority must be without bias and must
be impartial.3

Personal bias by judges may arise due to friendship, personal animosity or near relationships.
It would mean that the judge is feeling in favour or against a party to dispute. The real question
is not whether the judge was biased. It is difficult to prove the state of mind of a person.
Therefore, for the test of biasness what we have to see is whether there is reasonable ground
for believing that he was likely to have been biased.4

In the case of the A.K. Kraipak v. Union of India,5 it has been held by the Supreme Court that
inclusion of the Acting Inspector General of Forest as a Member of the Selection Board was
improper as he was one of the persons to be considered for selection as Inspector General of
Forest. A man could not be a judge in his own case. Even if he did not participate in the
deliberations of the Committee and his name was considered, the fact that he was a member of
the selection board must have its own impact of the decision of the selection board. The court
held that there is real likelihood of bias.

The counsel submits that in the case of Ashok Kumar Yadav vs. Haryana,6 the Court held that
a member of the Public Service Commission could not entirely disassociate himself from the
process of selection just because a few candidates were related to him. The court however
observed that, he should disassociate himself with the selection of the persons who are related

1
State of Orissa v. Binapani Dei, AIR 1967 SC 1269
2
Secretary to Government, Transport Department v. Munuswamy Mudaliar, 1988 Supp SCC 651
3
Rattan Lal Sharma v. Managing Committee & Ors, 1993 4 SCC
4
A. K. Kraipak & Ors. v. Union of India & Ors, (1969) 2 SCC 262
5
Id.
6
Ashok Kumar Yadav vs. Haryana, 1987 AIR 454

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MEMORIAL FOR THE PETITIONER

to him, but he does not need to disassociate with the selection of other candidates. Similarly,
in the case of Javid Rasool, 7 the court observed that it is not unusual for candidates related to
members of the Service Commission or other Selection Committee to seek employment.
Whenever such a situation arises, the practice generally is for the member concerned to excuse
himself when the particular candidate is interviewed.

The Supreme Court observed in the case of Jiwan K. Lohia,8 observed that the real test for
likelihood of bias is whether a reasonable person in possession of relevant information, would
have thought that bias was likely and whether the authority concerned was likely to be disposed
to decide a matter in a particular manner. The reason for this is plain enough as per Lord
Denning,9 Justice must be rooted in the confidence and the confidence is destroyed when right
minded people go away thinking that the judge is biased.

In the facts of the case, there was not only a reasonable apprehension in the mind of the
petitioner about the bias of the commissioner but such apprehension became real when the
petitioner conducted an independent inquiry and found out that the the person who was selected
in the interview was related to the comissioner as he was the vice chancellor of the university
he studied in and had personally taught him.

7
Javid Rasool Bhat & Ors. Etc vs State Of Jammu & Kashmir And Ors, 1984 SCR (2) 582
8
Jiwan K. Lohia v. Durga Dutt Lohia, (1992) 1 SCC 56
9
Lord Denning, The Discipline Of Law,(1982) pg.87

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MEMORIAL FOR THE PETITIONER

2) THE DOCTRINE OF ABSOLUTE NECESSITY DOES NOT ARISE IN THIS CASE

Doctrine of necessity is an exception to the rule against bias. The Supreme Court explained the
doctrine in Election Commission of India v. Subramaniam Swamy 10 when it observed that law
permits certain things to be done as a matter of necessity which would otherwise not
countenance on the touchstone of judicial propriety. The doctrine of necessity makes it
imperative to decide and considerations of judicial propriety must yield.

It is applied in a situation where no other person has authority to decide the matter11. In such a
situation if the doctrine of necessity is not applied it would impede the course of justice and
the defaulting party would benefit therefrom. Therefore, if the choice is between allowing a
biased person to act or to stifle the action altogether, the choice must fall on the former as it is
the only way to promote decision-making.12

The court has taken a narrower approach to this doctrine in recent cases. It has been made very
clear by the Supreme Court that Doctrine of Necessity cannot be invoked every now and then,
as if that is done, it might lead to absence of Rule of Law in the Society. 13 Hence, Doctrine of
Necessity should be taken as ‘Doctrine of Absolute Necessity’.

In this case six other people were there to interview the candidates, the Chief Commissioner’s
absence from the process of interview of his student would have made the entire process just.
Because justice should not only be done, but it must also be seen to be done.14 Also, there no
indication that the presence of Commissioner is necessay in case of ACPSE interview, and, as
argued before the Court, the general practice is for the member concerned to excuse himself
when the related candidate is interviewed.15 Thus it is clear that there is a real likelihood of
bias, and this case does not come under doctrine of absolute necessity.

10
Election Commission of India v. Subramaniam Swamy (1996) 4 SCC 104.
11
J. Mohapatra & Co. v. State of Orissa, (1984) 4SCC 103
12
I.P Maseey, Administrative Law, Annual Survey of Indian Law, Vol. XXXII, 1, 1996
13
Saad Abdul Sabti, Administrative Law: Doctrine of Necessity, International Journal of Law, Volume 3; Issue
3; May 2017; Page No. 59-62
14
R v Sussex Justices, Ex parte McCarthy, [1923] All ER Rep 233
15
Javid Rasool Bhat & Ors. Etc vs State Of Jammu & Kashmir And Ors, 1984 SCR (2) 582

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MEMORIAL FOR THE PETITIONER

PRAYER

Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly and respectfully prayed before this Hon’ble Court to:

1. Issue a write of mandamus, and declare the ACPSE Exam 2018 as violative of natural
justice.

And further pass any other order as this Hon’ble Court may deem fit and proper in the
circumstances of the case and in the light justice, equity and good conscience.

All of which is most humbly and respectfully prayed.

Sd. /-

Counsel for the Petitioner

1437/P

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