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TMI Blog2009 (2) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... ate the decision of the Government of India. It is also now well settled by a series of decisions of the Apex Court including the decision in Union of India and others v. Kali Das Batish and another (supra) that the mere inclusion of a candidate in the select list does not confer on him a right to be appointed and that if there was no right, there could be no occasion to maintain a writ petition for the enforcement of a non-existing right. Therefore, the petitioner cannot, in my considered opinion, assail the decision taken by the Government of India not to appoint him as Administrative Member of the CAT – Petition is dismissed - 16915 of 2005(L), - - - Dated:- 18-2-2009 - P.N. Ravindran, J. Shri P.A. Ahammed, for the Petitioner. Shri P. Parameswaran Nair, Asst. Solicitor, for the Respondent. [Judgment]. - In this Writ Petition, the petitioner seeks a writ in the nature of mandamus commanding the first respondent to appoint him as Administrative Member in the Central Administrative Tribunal, Ernakulam Bench. The brief facts of the case are as follows: 2. The petitioner was a member of the Indian Audit and Accounts Service. During the period from 1988 to 1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contended that two vacancies of Administrative Members existed in the CAT, Ernakulam Bench, that Sri. N. Ramakrishnan IAS, one among the two persons recommended by the Selection Committee for appointment against the said vacancies was appointed and that as per the norms, the Government of India is bound to appoint him as Administrative Member in the CAT, Ernakulam Bench. The petitioner has in the Writ Petition placed reliance on the decision of the High Court of Himachal Pradesh in Kali Das Batish v. Union of India others - 2005 (1) SLR 412 and the decisions of the Apex Court in Maneka Gandhi v. Union of India - AIR 1978 SC 597, E.P. Royappa v. State of Tamil Nadu - 1974 (1) SLR 497 SC and Ramana Dayaram Shetty v. The International Airport Authority of India - AIR 1979 SC 1628 relied on by the High Court of Himachal Pradesh in support of his contentions. In the Writ Petition as filed, the petitioner had prayed for a writ in the nature of mandamus commanding the Government of India to appoint him as Administrative Member in the CAT, Ernakulam Bench. After the Writ Petition was filed, Smt. Sathi Nair, the additional second respondent in the Writ Petition was appointed as Vice Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on report on his character and antecedents, the matter was resubmitted for consideration by the Selection Committee and that as the report was adverse to him, the Selection Committee withdrew their earlier recommendation to appoint him and that the recommendation of the Selection Committee to withdraw their earlier recommendation to appoint him as Administrative Member was concurred with by the Honourable the Chief Justice of India and approved by the appointing authority. The petitioner has further stated in the reply affidavit dated 3-7-2005 that though he had submitted Ext. P7 appeal against Ext. P6, it was turned down by Ext. P8, that he thereupon submitted Ext. P9 appeal to the Central Information Commission and that till date, the appeal has not been disposed of or the information sought made available to him under the Right to Information Act, 2005. 7. In the additional reply affidavit dated 16-7-2008, the petitioner has averred that though the report of the Intelligence Bureau was not furnished to him, it was furnished to Sri. Ram Kishore Prasad, an Advocate practising in the High Court of Jharkhand who was also denied appointment as Judicial Member of the CAT.A copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted by the Joint Secretary did not reflect the true state of affairs and as Ext. P13 proves that there was no enquiry against the petitioner as reported by the Intelligence Bureau, the Government of India is bound to reconsider its earlier decision and to appoint the petitioner as Administrative Member of the CAT. The learned Senior Advocate contended that it was at the intervention of Sri. K.J. Alphonse, IAS, who is named in Ext. P10 itself that a false report about the character and antecedents of the petitioner was submitted by the Intelligence Bureau and that as no enquiry as reported by the Intelligence Bureau was ever held against the petitioner, the injustice meted out to the petitioner has to be remedied by this Court. He contended that as the decision taken by the first respondent not to appoint the petitioner was prompted by a mistaken belief as regards the existence of a non-existing fact or circumstance, the decision is unreasonable and that such a decision which is based on reasons of fact which did not exist has therefore to be held to be an abuse of power. The learned Senior Advocate appearing for the petitioner, relying on the decisions of the Apex Court in State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointed as Administrative Member in the CAT. Since the controversy centres round the correctness of the statements in Ext. P10, the relevant portions thereof are extracted below: "Joint Secretary (AT) In its meeting held on 11-10-04, the Selection Committee for Vice-Chairman/Members of the Central Administrative Tribunal, recommended three persons for appointment as Administrative Member and three persons for appointment as Judicial Member. The Committee also recommended one candidate to be placed on the Waiting List for Administrative Member and one candidate to be placed on the Waiting List for Judicial Member. 2. After seeking approval of MOS (PP) and concurrence of the Chief Justice of India, proposals for the appointment of three Judicial Members and one Waiting List Judicial Member and for the appointment of two Administrative Members and one Waiting List Administrative Member have been forwarded to the ACC. One case of Administrative Member has been under process because a reference was made to the Intelligence Bureau. 3. The IB inquiry process is normally used only in the cases of Members of the Bar who are being considered for posting as Judicial Members. Such IB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re it only a simple CV of Shri James K. Joseph. 7. We may accordingly seek orders of MOS(PP) to reject the recommendation of the Selection Committee. Since the proposal to appoint the two other Admn. Member and a Waiting List candidate is already in ACC, there should be no difficulty about filling the vacancy with the Waiting List candidate." 11. The pleadings and the materials on record disclose that the Selection Committee that met on 11-10-2004 had recommended the name of the petitioner for appointment as Administrative Member of the CAT, that as the petitioner had retired from service in May, 1996 his case was referred to the intelligence Bureau for verification of character and antecedents and that the Intelligence Bureau had in its note dated 17-12-2004 reported that while the petitioner was the Accountant General of Kerala, he had faced an enquiry in connection with the recruitment of contingency staff from amongst the relatives of Class IV staff of the Accountant General's office, that the report of enquiry was unfavourable to the petitioner and consequently he proceeded on voluntary retirement. After the report of the Intelligence Bureau was received, the Joint Secreta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is prompted by a mistaken belief in the existence of a non-existing fact or circumstance, there would be an error of fact and that what is done under a mistaken belief, might almost be said to have been done in bad faith. It was held that an administrative order which is based on reasons of fact which do not exist must therefore be held to be infected with an abuse of power. 13. In R.S. Mittal v. Union of India (supra), the Apex Court while considering the question whether the Appointments Committee of the Cabinet was entitled to deviate from the recommendation made by the Selection Board, held that though a person on the select panel has no vested right to be appointed to the post for which he has been selected, the appointing authority cannot ignore the select panel or act on its whims. It was held that when a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then there is no justification to ignore him for appointment and that there has to be a justifiable reason to decline to appoint a person, who is on the select panel. On the facts of the case, the Apex Court held that no reason whatsoeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tish and Sri. Ram Kishore Prasad for appointment as Judicial Members of the CAT. In accordance with the established procedure, their antecedents were got verified through the Intelligence Bureau. The report of the Intelligence Bureau was not favourable to Sri. Kali Das Batish and Sri. Ram Kishore Prasad and therefore the Government of India decided that it would not be desirable to appoint them as Judicial Members of the CAT. The Government also proposed to appoint two among the candidates in the waiting list in the place of Sri. Kali Das Batish and Sri. Ram Kishore Prasad. The concurrence of the Honourable the Chief Justice of India was thereupon sought. The Honourable the Chief Justice of India concurred with the proposal of the Government of India and therefore, Sri. Kali Das Batish and Sri. Ram Kishore Prasad were not appointed. 15. Sri. Ram Kishore Prasad thereupon filed a Writ Petition in the High Court of Jharkhand challenging the action of the Union of India in not appointing him as Judicial Member and also sought a direction to the Central Government to appoint him as he was included in the select list. The High Court of Jharkhand held that the mere inclusion of the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al review and erred in interfering with the decision of the Union of India and the appointing authority not to appoint Sri. Kali Das Batish as Judicial Member of the CAT. It was argued that the High Court of Himachal Pradesh failed to bear in mind the fact that the proposal to appoint the candidates along with all the relevant papers including the report of the Intelligence Bureau had been forwarded to the Honourable the Chief Justice of India for his concurrence and that the Honourable the Chief Justice of India had after consideration of all the materials concurred with the proposal of the Government of India to appoint candidates other than Sri. Kali Das Batish and Sri. Ram Kishore Prasad as indicated in the proposal submitted by the Government of India. Accepting the contentions of the Union of India, the Apex Court in Union of India and others v. Kali Das Batish and another (supra) held as follows: "10. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 17. In Union of India and others v. Kali Das Batish and another (supra) the Apex Court held that it is not open to the High Court to sit in appeal not only over the decision of the Government of India, but also the decision taken by the Honourable the Chief Justice of India by attempting to disprove the issues raised by the Intelligence Bureau. The Apex Court approved the reasoning of the High Court of Jharkhand that when the decision to appoint or not to appoint a candidate as Judicial Member of the CAT has been made with the concurrence of the Honourable the Chief Justice of India, there is no scope for judicial review. The Apex Court also cautioned that the courts exercising the power of judicial review shall keep in mind the recognised limit, albeit self-recognised, to the exercise of such power, which was highlighted by the Apex Court in K. Ashok Reddy v. The Government of India and others - (1994) 2 SCC 303. In K. Ashok Reddy v. The Government of India and others (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial review cannot sit in appeal over the report submitted by the Intelligence Bureau, attempt to disprove it and in that process sit in appeal over the decision taken by the Honourable the Chief Justice of India as regards the choice of candidates selected for appointment as Judicial Members of the CAT. Therefore, this Court cannot entertain the petitioner's plea and hold as requested by him that as the Selection Committee had withdrawn their earlier recommendation based on the report submitted by the Intelligence Bureau, which the petitioner attempts to prove was false, the decision taken by the Government of India not to appoint him is arbitrary and is liable to be invalidated. 19. The Selection Committee headed by the Honourable Mr. Justice K.G. Balakrishnan, presently the Chief Justice of India, had after the report of the Intelligence Bureau on the petitioner's character and antecedents was placed before them along with the relevant files, reconsidered the matter and decided to withdraw their earlier recommendation to appoint him as Administrative Member of the CAT. The Honourable the Chief Justice of India concurred with the decision of the Selection Committee and this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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