Full Judgment Text
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CASE NO.:
Appeal (civil) 6663 of 2004
PETITIONER:
Union of India & Ors.
RESPONDENT:
Kali Dass Batish & Anr.
DATE OF JUDGMENT: 05/01/2006
BENCH:
C.J.I. , B.N. Srikrishna & R.V. Raveendran
JUDGMENT:
J U D G M E N T
with
Civil Appeal Nos. 7575-7576 of 2004
SRIKRISHNA, J.
This group of appeals raises the following question for determination
of this Court:
What is the scope of ’judicial review’ in an order for
appointment of a member of the Central Administrative
Tribunal made in consultation with the Chief Justice of
India?
The Central Administrative Tribunal (hereinafter referred to as "the
CAT") is one of the Tribunals constituted under Section 4 of the
Administrative Tribunals Act, 1985 (hereinafter referred to as "the Act")
with its jurisdiction determined by Section 14 of the Act. It exercises
jurisdiction, powers and authority exercisable immediately on and from the
appointed day by all courts other than the Supreme Court with regard to
service matters and disputes pertaining to service inter alia of Central
Government employees. It comprises ’Administrative Members’ and
’Judicial Members’ as respectively defined in Section 3(a) and 3(i) of the
Act. Sub-sections (3) and (3A) of Section 6 of the Act prescribe the
qualifications respectively for appointment of ’Judicial Member’ and
’Administrative Member’. The Department of Personnel and Training,
Government of India by Order dated 15.4.1991/ 23.4.1991 has laid down
detailed guidelines about the constitution and procedure to be adopted by the
Selection Committee for selection of Vice-Chairman and Members of the
CAT. In the case of selection of a Judicial Member, the Selection Committee
is required to be chaired by the nominee of the Chief Justice of India, who
shall be a sitting Judge of the Supreme Court of India and shall comprise the
following additional members: (i) Secretary, Ministry of Law and Justice
(Department of Legal Affairs); (ii) Secretary, Ministry of Personnel; and (iii)
Chairman of the CAT.
Seven vacancies of Judicial Members and three vacancies of
Administrative Members of the CAT arose during the period 1.7.2001 to
31.12.2001. Nominations were invited for these vacancies from different
authorities.
First and Second Respondents in C.A. No. 6663/2004, namely, K.D.
Batish and Ram Kishore Prasad, respectively, were amongst the candidates
for selection to the post of Judicial Member in the CAT. The Selection
Committee met under the Chairmanship of Hon’ble Mr. Justice G.B. Patnaik
(as he then was) on 18.7.2001 and considered the names of 121 persons for
selection to the aforesaid vacancies. First and Second Respondents were also
among those considered for selection. The Selection Committee
recommended the names of seven persons for appointment as Judicial
Members and three persons for appointment as Administrative Members in
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the main list and an equal number of persons in the waiting list. The
candidates whose names appeared in the waiting list were to be appointed in
case any of the persons named in the main list were not appointed for any
reason. The names of First Respondent-K.D. Batish and Second
Respondent- Ram Kishore Prasad were at Sl. Nos. 1 and 6, respectively, of
the main list. It is the established procedure that where members of the Bar
are considered for such important judicial posts, their antecedents are
required to be verified through the Intelligence Bureau (hereinafter referred
to as "the IB") and a report obtained from the IB. Accordingly, the names of
all such recommended persons were sent to the IB. After obtaining the report
from the IB, the Director (AT), Ministry of Personnel, Public Grievances
and Pensions made a noting on the file on 25.10.2001 in which he noted in
respect of First Respondent as under: "(i) In legal circles, he is considered to
be an advocate of average caliber. (ii) It is learnt that though he was allotted
to the Court of Justice R.L. Khurana, the learned Judge was not happy with
his presentation of cases and asked the Advocate General to shift him to
some other court, which was done. (iii) He was a contender for the Shimla
AC seat on BJP ticket in 1982 and 1985. When he did not get the ticket, he
worked against the party and was expelled from the party in 1985. He was
subsequently reinducted by the party in 1989." The Director (AT) was,
however, of the view that since the candidate had been recommended by the
Selection Committee headed by a Judge of the Supreme Court, the benefit of
doubt had to be given to him and the dissatisfaction of Justice Khurana with
his performance must be treated as counterbalanced by the recommendation
of the Selection Committee headed by the Sitting Judge of the Supreme
Court.
On 29.10.2001 the Joint Secretary (AT & A), Ministry of Personnel
and Training made a noting to the following effect: "(i) Shri Batish has
strong political affiliations and was a contender for the Shimla AC seat in
1982 and 1985 from BJP; (ii) He appears to be of average caliber and Justice
Khurana of the Himachal Pradesh High Court seems to have asked the
Advocate General to shift him to some other Court; and (iii) There is nothing
adverse against his character or integrity."
On 30.10.2001 the Secretary (P) made a noting on the file that Shri
Batish need not be appointed since his performance was so poor that he was
shifted to another Court. On 31.10.2001 the Minister of State made a noting
and directed that the IB Report along with the department recommendations
be sent to the Chief Justice of India. Accordingly, the Secretary (Personnel)
vide Confidential Memorandum dated 6.11.2001 forwarded all necessary
papers including the IB Report and sought the concurrence of the Chief
Justice of India with regard to the names recommended by the Central
Government.
On 12.11.2001 the Chief Justice of India concurred with the proposal
submitted to him vide Confidential Memorandum dated 6.11.2001. On
14.1.2002 the appointments of the selected candidates were notified, but the
First and Second Respondents were not appointed.
On 30.6.2003 the Second Respondent-Ram Kishore Prasad filed a
Writ Petition No. 3098/2003 before the Jharkhand High Court challenging
the action of the Central Government in not appointing him as a Judicial
Member of the CAT and sought a direction to the Central Government to
appoint him on the ground of his being included in the select list. On
23.9.2003 the High Court of Jharkhand at Ranchi dismissed the writ petitiion
filed by the Second Respondent inter alia holding that mere inclusion of the
name of a candidate in the select list gave him no right to be appointed, that
in the case of appointment to a judicial post like the CAT it was not only the
right, but also the duty, of the appointing authority to verify the antecedents
of the candidate on the basis of the report and inputs from the IB, that it was
open to the appointing authority not to appoint any person whose name had
been included in the list prepared by the Selection Committee, that in
excluding the petitioner-Second Respondent, on the basis of IB report
received, which was made available to the Chief Justice of India, and whose
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concurrence to the proposal was obtained by the Government of India after
apprising the Chief Justice of India of all the relevant facts, left no scope for
judicial review, and that there was no case of mala fides worth considering.
In this view of the matter, the writ petition was found to be without merit
and dismissed. The Second Respondent took out an application Civil Review
No. 119/2003 for review of the aforesaid judgment, which came to be
dismissed by the order of the Jharkhand High Court made on 11.8.2004.
Being aggrieved by the aforesaid judgments, the Second Respondent has
filed Civil Appeal Nos. 7575-7576/2004 in this Court.
The First Respondent-K.D. Batish filed a Writ Petition No. 812/2003
before the High Court of Himachal Pradesh at Shimla impugning the
decision of the Central Government not to appoint him as a Judicial Member
of the CAT and seeking a mandamus for his appointment.Though the said
writ petition was contested by the Union of India, the High Court by its
judgment dated 25.5.2004 allowed the writ petition and directed the
respondents to the writ petition (Union of India and the appointing authority)
to reconsider afresh, as a special case, the petitioner-K.D. Batish for his
appointment as a Judicial Member of the CAT, based on his selection by the
Selection Committee.
The Union of India has challenged the judgment of the High Court of
Himachal Pradesh in CWP No. 812/2003 by its Civil Appeal No. 6663/2004
in which K.D. Batish and Ram Kishore Prasad are the First and Second
Respondents, respectively. Ram Kishore Prasad was a Respondent in the
writ petition before the Himachal Pradesh High Court and therefore appears
to have been made a Respondent in this case also.
The learned Solicitor General made a frontal attack on the judgment
of the High Court of Himachal Pradesh contending that the High Court has
far exceeded its powers of judicial review and grievously erred in interfering
with the decision of the Union of India and the appointing authority not to
appoint the First and Second Respondents to the posts of Judicial Members
of the CAT, after obtaining the concurrence of the Chief Justice of India. He
also contends that the High Court erred in adopting the extraordinary
procedure of calling for an affidavit of the Registrar General to be filed on
the basis of instructions obtained from Justice Khurana of the same High
Court to be used as substantive evidence in the decision of the said writ
petition, though the High Court itself was aware that it was an "unusual
procedure".
The learned Solicitor General further contends that the High Court
singularly failed to keep in mind the scope of Sections 6 and 7 of the Act,
that along with the proposal for appointment of the candidates all the
relevant papers, including the IB report, had been forwarded to the Chief
Justice of India for his concurrence, and that, after consideration of all the
material, the Chief Justice of India had concurred with the proposal of the
Government of India for the appointment of the candidates as indicated in
the proposal.
There is merit in the submissions of the Ld. Solicitor General. It
appears that the High Court has acted in the matter as if dealing with an
appointment made by an executive officer. It must be remembered that, the
CAT is a Tribunal constituted under Article 323A of the Constitution and is
expected to have the same jurisdiction as that of a High Court.
Consequently, Parliament has taken great care to enact, vide Sections 6 and
7 of the Act, that no appointment of a person possessing the qualifications
prescribed in the Act as a Member shall be made, except after consultation
with the Chief Justice of India. The consultation with the Chief Justice of
India is neither a routine matter, nor an idle formality. It must be
remembered that, a member of an Administrative Tribunal like the CAT
exercises vast judicial powers, and such member must be ensured absolute
judicial independence, free from influences of any kind likely to interfere
with independent judicial functioning or militate thereagainst. It is for this
reason, that a policy decision had been taken by the Government of India
that while considering members of the Bar for appointment to such a post,
their antecedents have to be verified by the IB. The antecedents would
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include various facts, like association with anti-social elements, unlawful
organizations, political affiliations, integrity of conduct and moral
uprightness. All these factors have necessarily to be verified before a
decision is taken by the appointing authority to appoint a candidate to a
sensitive post like Member of the CAT. In Delhi Administration v. Sushil
Kumar this Court emphasized that even for the appointment of a Constable
in Police Services, verification of character and antecedents is one of the
important criteria to test whether the selected candidate is suitable to a post
under the State. Even if such candidate was found physically fit, had passed
the written test and interview and was provisionally selected, if on account
of his antecedent record, the appointing authority found it not desirable to
appoint a person of such record as a Constable, the view taken by the
appointing authority could not be said to be unwarranted, nor could it be
interdicted in judicial review. These are observations made in the case of a
Constable, they would apply with greater vigour in the case of appointment
of a Judicial Member of the CAT. It is for this precise reason, that sub-
section (7) to Section 6 of the Act requires that, the appointment of a
Member of the CAT cannot be made "except after consultation with the
Chief Justice of India". This consultation should, of course, be an effective
consultation after all necessary papers are laid before the Chief Justice of
India, and is the virtual guarantee for appointment of absolutely suitable
candidates to the post.
Unfortunately, the High Court seems to have proceeded on the footing
that the appointment was being made on its own by the Central Government
and that there was an irregular procedure followed by the Secretary by
giving undue importance to the IB report. It was most irregular on the part of
the High Court to have sat in appeal over the issues raised in the IB report
and attempted to disprove it by taking affidavits and the oral statement of the
Advocate General at the Bar. We strongly disapprove of such action on the
part of the High Court, particularly when it was pointed out to the High
Court that, along with the proposals made by the Government, the Minister
of State had specifically directed for submission of the IB report to the Chief
Justice of India for seeking his concurrence, and that this was done. We note
with regret that the High Court virtually sat in appeal, not only over the
decision taken by the Government of India, but also over the decision taken
by the Chief Justice of India, which it discarded by a side wind. In our view,
the High Court seriously erred in doing so. Even assuming that the Secretary
of the concerned department of the Government of India had not apprised
himself of all necessary facts, one cannot assume or impute to a high
constitutional authority, like the Chief Justice of India, such procedural or
substantive error. The argument made at the Bar that the Chief Justice of
India might not have been supplied with the necessary inputs has no merit. If
Parliament has reposed faith in the Chief Justice of India as the paterfamilias
of the judicial hierarchy in this Country, it is not open for anyone to contend
that the Chief Justice of India might have given his concurrence without
application of mind or without calling for the necessary inputs. The
argument, to say the least, deserves summary dismissal.
In this matter, the approach adopted by the Jharkhand High Court
commends itself to us. The Jharkhand High Court approached the matter on
the principle that judicial review is not available in such a matter. The
Jharkhand High Court also rightly pointed out that mere inclusion of a
candidate’s name in the selection list gave him no right, and if there was no
right, there could be no occasion to maintain a writ petition for enforcement
of a non-existing right.
In Punjab State Electricity Board and Ors. v. Malkiat Singh ,
this Court reiterated the observations of the Constitution Bench of this Court
in Shankarsan Dash v. Union of India as under:
"7. It is not correct to say that if a number of vacancies
are notified for appointment and adequate number of
candidates are found fit, the successful candidates
acquire an indefeasible right to be appointed which
cannot be legitimately denied. Ordinarily the notification
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merely amounts to an invitation to qualified candidates to
apply for recruitment and on their selection they do not
acquire any right to the post. Unless the relevant
recruitment rules so indicate, the State is under no legal
duty to fill up all or any of the vacancies. However, it
does not mean that the State has the licence of acting in
an arbitrary manner. The decision not to fill up the
vacancies has to be taken bona fide for appropriate
reasons. And if the vacancies or any of them are filled up,
the State is bound to respect the comparative merit of the
candidates, as reflected at the recruitment test, and no
discrimination can be permitted. This correct position has
been consistently followed by this Court, and we do not
find any discordant note in the decisions in State of
Haryana v. Subhash Chander Marwaha , Neelima
Shangla v. State of Haryana or Jatinder Kumar v.
State of Punjab ." (emphasis supplied)
This, in our view, is the correct approach to be adopted in dealing with a
matter of this nature.
In K. Ashok Reddy v. Government of India and Ors. this Court
indicated that however wide the power of judicial review under Articles 226
or 32 there is a recognised limit, albeit self-recognised, to the exercise of
such power. This Court reiterated a passage from Craig’s Administrative
Law (Second Edn., p. 291)., vide Paragraph 21, as under:
"The traditional position was that the courts would
control the existence and extent of prerogative power, but
not the manner of exercise thereof. .... The traditional
position has however now been modified by the decision
in the GCHQ case. Their Lordships emphasised that the
reviewability of discretionary power should be dependent
upon the subject-matter thereof, and not whether its
source was statute or the prerogative. Certain exercises of
prerogative power would, because of their subject-matter,
be less justiciable, with Lord Roskill compiling the
broadest list of such forbidden territory ...."
The observations of Lord Roskill, referred to above are from Council of
Civil Service Unions v. Minister for the Civil Service (GCHQ case) as
under:
"But I do not think that that right of challenge can be
unqualified. It must, I think, depend upon the subject-
matter of the prerogative power which is exercised. Many
examples were given during the argument of prerogative
powers which as at present advised I do not think could
properly be made the subject of judicial review.
Prerogative powers such as those relating to the making
of treaties, the defence of the realm, the prerogative of
mercy, the grant of honours, the dissolution of Parliament
and the appointment of ministers as well as others are
not, I think, susceptible to judicial review because their
nature and subject-matter are such as not to be amenable
to the judicial process."
Finally, this Court emphasised judicial restraint by citing with
approval a passage in De Smith’s Judicial Review of Administrative Action,
(vide Paragraph 23) as under:
"Judicial self-restraint was still more marked in cases
where attempts were made to impugn the exercise of
discretionary powers by alleging abuse of the discretion
itself rather than alleging non-existence of the state of
affairs on which the validity of its exercise was
predicated. Quite properly, the courts were slow to read
implied limitations into grants of wide discretionary
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powers which might have to be exercised on the basis of
broad considerations of national policy."
Based on this reasoning, it was acknowledged that the transfer of a Judge of
the High Court based on the recommendation of the Chief Justice of India
would be immune from judicial review as there is "an inbuilt check against
arbitrariness and bias indicating absence of need for judicial review on those
grounds. This is how the area of justiciability is reduced \005. "
We, respectfully, reiterate these observations, and expect them to be
kept in mind by all courts in this Country invested with the power of judicial
review.
The respondents have relied on the judgments of this Court in R.S.
Mittal v. Union of India in support of their contentions. In our view, the
said authority hardly advances their case. In the first place, all that the
authority says is that where a Selection Board headed by a sitting Judge of
the Supreme Court had recommended certain candidates for appointment as
Members of the ITAT, it was not open to the Government of India to sit on
the said recommendation without taking action. That was not a case where a
decision taken not to appoint a candidate for good reason was concurred in
by the Chief Justice of India.
The judgment in Dr. A.K. Doshi v. Union of India on which the
respondents relied is also of no consequence. That was also not a case of
concurrence of the Chief Justice of India and, in any event, this Court had
found a certain amount of mala fides on the part of the Secretary of the
Department concerned.
The Second Respondent-Ram Kishore Prasad, who argued his own
case adopted the arguments of the First Respondent. In addition, he
submitted lengthy written arguments and contended that his name was
deleted with mala fide intention for illegally favouring one J.K. Kaushik,
who was down below in the merit list. Apart from the bald allegation, there
is no material, whatsoever, presented before the High Court in support of
this mala fide intention, nor did the High Court accept the case.
We have carefully perused the written arguments filed by the Second
Respondent. Reliance on the judgment in Sarwan Singh Lamba and Ors.
v. Union of India and Ors. helps in no way. Sarwan Singh (supra) is not
an authority which militates against the view we are inclined to take. On the
other hand, even this judgment suggests that where the candidates were duly
qualified and eligible for the posts against which they were appointed, and
all of them had been appointed after consultation with the Chief Justice of
India, there was no violation of any law or procdure in their appointments.
We consider it unnecessary to refer in detail to a number of authorities
on which the Second Respondent has relied for, in our view, they are not
relevant.
In the result, we are of the view that the impugned judgment of the
High Court of Himachal Pradesh is erroneous and needs to be set aside,
while the judgment and order of the High Court of Jharkhand are right and
in consonance with the position in law and need to be upheld. Hence, we
dismiss Civil Appeal Nos. 7575-7576/2004 directed against the judgment
and order of the High Court of Jharkhand.
We allow the appeal of the Union of India in Civil Appeal No.
6663/2004 and set aside the impugned judgment of the High Court of
Himachal Pradesh in Writ Petition No.812/2003.
There shall be no order as to costs.