Union of India & Ors Vs. Kali Dass Batish
& Anr [2006] Insc 14 (5 January 2006)
C.J.I.
, B.N. Srikrishna & R.V. Raveendran
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:
-
Secretary,
Ministry of Law and Justice (Department of Legal Affairs);
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Secretary,
Ministry of Personnel; and
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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 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:
-
In legal
circles, he is considered to be an advocate of average caliber.
-
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.
-
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:
-
Shri Batish has
strong political affiliations and was a contender for the Shimla AC seat in
1982 and 1985 from BJP;
-
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
-
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 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
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:
-
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 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 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 . " 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.
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