JUDGMENT

AHMADI, J.—(for himself and on behalf of M. M. Punchhi, J.) :- We have had the benefit of the industry, erudition and exposition of the constitutional and jurisprudential aspects of law on the various questions urged before us in the judgment of our esteemed Brother K. Ramaswamy, J. But while concurring with the hereinafter mentioned conclusions recorded by him we would like to say a few words to explain our points of view. Since the facts have been set out in detail by our learned Brother we would rest content by giving an abridged preface which we consider necessary.

2. It all began with the receipt of a letter dated December 26, 1991, from Shri R. K. Jain, Editor, Excise Law Times, addressed to the then Chief Justice of India, Shri M. H. Kania, J., complaining that as the Customs, Excise and Gold Control Appellate Tribunal (for short the CEGAT) was without a President for the last over six months the functioning of the Tribunal was adversely affected, in that, the Benches sit for hardly two hours or so, the sittings commence late at about 10.50 a.m., there is a tendency to 1774 adjourn cases on one pretext or the. other so much so that even passing of interim orders, like stay orders, etc. is postponed and inordinately delayed, and the general tendency is to work for only four days in a week. The work culture is just not there and the environmental degradation that has taken place is reflected in the letter of Shri G. Sankaran dated June 3, 1991 who prematurely resigned as the President of the CEGAT. Lastly, he says that there were nearly 42,000 appeals and approximately 2000 stay petitions pending in the CEGAT involving revenue worth crores of rupees, which will remain blocked for long. Three directions were sought, namely,

"(i) the immediate appointment of the President to the CEGAT, preferably a senior High Court Judge;

(ii) order an enquiry into the mal-functioning of the CEGAT; and

(iii) issue all other directions as your Lordship may deem fit and necessary."

3. This letter was directed to be treated as public Interest Litigation and notice was issued to the Union of India restricted to relief No. (i) i.e. in regard to the appointment of the President of the CEGAT. On April 29, 1992, the learned Additional Solicitor General informed the Court that the appointment of the President was made. On the next date of hearing the relevant file on which the decision regarding appointment was made was produced in a sealed envelope in Court which we directed to be kept in safe custody as apprehension was expressed that the file may be tampered with. The focus which was initially on the working of the CEGAT and in particular against the conduct and behaviour of one of its Members now shifted to the legality and validity of the appointment of respondent No. 3 as its President. Serious allegations were made against respondent No. 3 and his competence to hold the post was questioned. It was contended that his appointment was made in violation of the Rules and convention found mentioned in the message of Shri Y. V. Chandrachud, the then Chief Justice of India, dated October 5, 1992 forwarded on the occasion of the inauguration of the CEGAT. The further allegation made is that even though High Court Judges were available no serious attempt was made to requisition the services of one of them for appointment as President of the CEGAT. To put a quietus to the entire matter at an early date we called the file from the Registry on May 4, 1992 but when we were about to peruse the same the learned Additional Solicitor General contended that the Court cannot inspect it because he desired to claim privilege. We, therefore, directed that a formal application may be made in that behalf before the next date of hearing and returned the file to enable the making of such an application. Accordingly, the then Finance Secretary filed an affidavit claiming privilege under Ss. 123 and 124, Evidence Act, and Article 74(2) of the Constitution. The Minis