2006 Supreme(SC) 18

2006(1) Supreme 187
Supreme Court of India
(From Himachal Pradesh High Court)
Y.K. Sabharwal, CJI., B.N. Srikrishna and R.V. Raveendran, JJ.
Union of India & Ors. —Appellants
versus
Kali Dass Batish & Anr. —Respondents
Civil Appeal No. 6663 of 2004
With
Civil Appeal Nos. 7575-7576 of 2004
Decided on 5-1-2006
Counsel for the Parties :
For the Appellants : G.E. Vahanvati, SG, R. Mohan, ASG, Devdatt Kamat, Hrishikesh Barauh, Ms. Suruchi Suri, P. Parmeswaran, Ms. Sushma Suri and Ashok Kumar Sharma, Advocates.
For the Respondent No. 1 : Naresh K. Sharma, Advocate.
For the Respondent No. 2 : In-Person.

Important point
High Court has no power to make judicial review of an order for appointment of a member of Central Administrative Tribunal made in consultation with the Chief Justice of India.

Headnote:Administrative Tribunals Act, 1985 —Sections 4 and 6—Central Administrative Tribunal—Constitution—Procedure to be adopted by Selection Committee for selection of members of Tribunal—Selection of a Judicial Member —Selection Committee recommended names of seven persons for appointment as Judicial Members and three persons for appointment as Administrative Members which included names of two respondents as judicial Members—On the basis of report from Intelligence Bureau, Secretary, Ministry of Personnel and Training made noting that respondents need not be appointed and sought concurrence of the Chief Justice of India with regard to names recommended by Central Government—Chief Justice of India concurred with proposal submitted to him and appointments of selected candidates were notified but respondents were not appointed—Writ petition by 1st respondent allowed by High Court of Himachal Pradesh and writ filed by 2nd respondent was dismissed by High Court of Jharkhand—Appeals—Question as to what was scope of "judicial review" in an order for appointment of a member of Central Administrative Tribunal made in consultation with Chief Justice of India?—High Court seriously erred in its view as it was sitting in appeal not only over decision of Government of India but also over the decision taken by CJI—Impugned judgment of High Court of Himachal Pradesh was erroneous and was liable to be set aside.

       Held : 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 [(1996) 11 SCC 605] 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. (Paras 13 to 15)