2006 (1) TMI 627 - SC - Indian Laws

Validity Of Appointment of 'Judicial Member' and 'Administrative Member' - Selection Committee - Jurisdiction, Powers and Authority Of Central Administrative Tribunal ( the CAT ) - Whether consultation for appointment with the Chief Justice of India is a routine matter, or an idle formality ? - HELD THAT - 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. 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 directed against the judgment and order of the High Court of Jharkhand. We allow the appeal of the Union of India in Civil Appeal and set aside the impugned judgment of the High Court of Himachal Pradesh in Writ Petition.

Issues Involved:
1. Scope of judicial review in the appointment of a member of the Central Administrative Tribunal (CAT) made in consultation with the Chief Justice of India.
2. Verification of antecedents by the Intelligence Bureau (IB) for candidates recommended for judicial posts.
3. Right of candidates included in the selection list to be appointed.
4. Judicial review of decisions taken by the Government of India and the Chief Justice of India.
5. Allegations of mala fides in the non-appointment of candidates.

Detailed Analysis:

1. Scope of Judicial Review in the Appointment of CAT Members:
The Supreme Court examined the extent of judicial review in the context of appointments to the CAT, emphasizing that such appointments, made in consultation with the Chief Justice of India, are not subject to routine judicial scrutiny. The Court underscored that the CAT is a tribunal with jurisdiction akin to a High Court, and therefore, the appointment process involves significant checks and balances, including the mandatory consultation with the Chief Justice of India, which is not a mere formality but a crucial safeguard ensuring the selection of suitable candidates.

2. Verification of Antecedents by the Intelligence Bureau (IB):
The Court highlighted the importance of verifying the antecedents of candidates recommended for judicial posts, particularly through the IB. This verification process includes assessing various factors such as political affiliations, integrity, and moral uprightness. The Court cited the case of Delhi Administration v. Sushil Kumar to emphasize that even for lower posts like a constable, antecedent verification is critical, and this principle applies even more rigorously to judicial appointments like those to the CAT.

3. Right of Candidates Included in the Selection List to be Appointed:
The Court reiterated that mere inclusion in the selection list does not confer an indefeasible right to appointment. The appointing authority retains the discretion to decide on appointments based on various criteria, including the IB report. This principle was supported by references to previous judgments, including Punjab State Electricity Board v. Malkiat Singh and Shankarsan Dash v. Union of India, which clarified that selection does not guarantee appointment unless the relevant rules indicate otherwise.

4. Judicial Review of Decisions by the Government and Chief Justice of India:
The Court criticized the Himachal Pradesh High Court for overstepping its judicial review powers by interfering with the decision of the Union of India and the Chief Justice of India. The Court emphasized that the consultation with the Chief Justice of India is a robust mechanism ensuring the suitability of candidates, and it is not within the purview of the courts to second-guess this process. The Court endorsed the approach of the Jharkhand High Court, which correctly held that judicial review is not available in such matters and that inclusion in the selection list does not create a right to appointment.

5. Allegations of Mala Fides:
The Court dismissed the allegations of mala fides made by the respondents, noting that there was no substantial evidence to support such claims. The Court found that the decisions not to appoint the respondents were based on valid considerations, including the IB report, and were concurred with by the Chief Justice of India. The Court reiterated that the High Court should not have entertained unsubstantiated allegations of mala fides, especially when the Chief Justice of India had been involved in the consultation process.

Conclusion:
The Supreme Court set aside the judgment of the Himachal Pradesh High Court, which had directed the reconsideration of the appointment of one of the respondents, and upheld the judgment of the Jharkhand High Court, which had dismissed the writ petition challenging the non-appointment. The Court emphasized the limited scope of judicial review in such appointments and the importance of the consultation process with the Chief Justice of India. The appeals against the Jharkhand High Court's judgment were dismissed, and the appeal by the Union of India against the Himachal Pradesh High Court's judgment was allowed.

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