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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 ..... a State Industrial Development Corporation and the Kerala State Road Transport Corporation. 3. Three vacancies of Administrative Member in the Central Administrative Tribunal (hereinafter referred to as the CAT for short) arose during the period from 1-1-2004 to 30-6-2004. The Government of India notified the vacancies and invited applications from eligible candidates. The petitioner applied for appointment as Administrative Member in the CAT by submitting Ext. P1 application dated 23-8-2004 to the Joint Secretary (Administration), Ministry of Personnel, Government of India. The petitioner states that the post of Accountant General is a post equated to the post of Joint Secretary to Government of India and that only civil servants, who are consistent and outstanding in their performance are posted as Joint Secretary to Government of India. According to him, he had 8 years of experience in the category of Joint Secretary and was therefore eligible and qualified to be appointed as Administrative Member in the CAT. 4. The Selection Committee constituted by the Government of India in terms of Order No. A-1013/54/90-At dated 15-4-1991 and 23-4-1991 considered the applications received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CAT, Ernakulam Bench. Both the applications have been allowed. 5. The first respondent has filed a counter affidavit denying and disputing petitioner's averment that the Selection Committee had recommended him along with Sri. N. Ramakrishnan, IAS for appointment as Administrative Member in the CAT, Ernakulam Bench. The first respondent has also raised a contention that the Writ Petition is based on surmises and conjectures and that the allegations in the Writ Petition are baseless and are not tenable. It is also stated that the Union of India has filed an appeal before the Apex Court, challenging the correctness of the decision of the High Court of Himachal Pradesh in Kali Das Batish v. Union of India & others - 2005 (1) SLR 412, that the judgment of the High Court of Himachal Pradesh has been stayed by the Apex Court and that a final verdict in the matter is awaited. 6. The petitioner has filed a reply affidavit dated 3-7-2005 and an additional reply affidavit dated 16-7-2008. In the reply affidavit dated 3-7-2005, the petitioner has stated that he had applied to the Central Public Information Officer (Administrative Tribunal) to disclose the reason for which he was denied appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of enquiry was not favourable to him, he proceeded on voluntary retirement. The petitioner submits that there is no truth in the allegations levelled against him in Ext. P10 and that the report submitted by the Intelligence Bureau was false. He relies on Ext. P13 letter dated 26-6-2008 sent by the Central Public Information Officer in the Office of the Comptroller & Auditor General of India to contend that no enquiry whatsoever was held in connection with the recruitment of contingency staff in the office of the Accountant General of Kerala and that the report submitted by the Intelligence Bureau was one engineered by Sri. K.J. Alphonse, IAS, with whom he was not on good terms. The petitioner also submits that as the Managing Trustee of Resurgent Educational and Charitable Trust he had sacked its Director Sri. K.J. Roy, brother of Sri. K.J. Alphonse, IAS for indulging in corrupt practices and that it infuriated and prompted Sri. K.J. Alphonse to engineer the submission of a false report by the Intelligence Bureau. 8. I have heard Sri. S. Kalyanam, the learned Senior Advocate appearing for the petitioner, Sri. P. Parameswaran Nair, the learned Assistant Solicitor General of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide and the petitioner is entitled to be appointed. 9. Per contra, the learned Assistant Solicitor General appearing the first respondent contended that as the Selection Committee chaired by a Sitting Judge of the Honourable the Supreme Court of India had withdrawn their earlier recommendation to appoint the petitioner and as the Honourable the Chief Justice of India had concurred with the decision of the Selection Committee and the appointing authority had accepted it, the petitioner cannot challenge his non-selection and seek a writ in the nature of mandamus commanding the Government of India to appoint him as Administrative Member in the CAT. He also relied on the decision of the Apex Court in Union of India & others v. Kali Das Batish and another - AIR 2006 SC 789 to contend that the decision taken by the Selection Committee to withdraw their earlier recommendation and the decision taken by the appointing authority not to appoint the petitioner are not justiciable and that this Court cannot therefore exercise the power of judicial review and issue a writ in the nature of mandamus commanding the first respondent to appoint the petitioner as Administrative Member in the CAT. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of MOS (PP) were obtained in 18-10-04 and the case referred to IB. 4. The IB's comments have been received in note of 17-12-04. The report makes mixed reading. There are references to Shri Joseph's association with the BJP, though having retired from Government service, Shri James K. Joseph is free to take part in political activities. There is also a reference to an ongoing feud between him and Shri K.J. Alphonse, IAS, on a matter related to the Resurgent Kerala Educational and Charitable Trust, Trivandrum. It should be noted that we have independently received various documents from Shri K.J. Alphonse related to the same matter. It should also be noted that while the complaints against Shri James K. Joseph are serious, Shri K.J. Alphonse himself is highly controversial and no judgment can be passed in the matter without a better knowledge of the facts. 5. There is yet another issue mentioned in the IB report which is probably more serious. It is stated that during his posting as Accountant General, Kerala, Shri Joseph had faced an inquiry in connection with recruitment of some contingency staff from amongst relatives of Class IV staff of the AG Office. The IB report clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Selection Committee to withdraw their earlier recommendation to appoint the petitioner as Administrative Member in the CAT, was concurred with by the Honourable the Chief Justice of India and approved by the appointing authority. It is in this background that this Court has to consider whether the petitioner is entitled to seek a writ in the nature of mandamus commanding the first respondent to appoint him as Administrative Member in the CAT. 12. I shall now refer to the decisions of the Apex Court relied on by the learned Senior Advocate appearing for the petitioner. In State of Madhya Pradesh and another v. Bhailal Bhai and others (supra) a Constitution Bench of the Apex Court considered the question whether the High Court has power under Article 226 of the Constitution to order refund of tax which was illegally collected. It was held that if a right has been infringed - whether fundamental right or statutory right - and the aggrieved party comes to the court for enforcement of the right, it will not be giving complete relief if the court merely declares the existence of such right or the fact that the existing right has been infringed. The Apex Court also held that where there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Selection Committee to deny appointments to candidates recommended by the Selection Committee. The Apex Court held that after the Selection Committee which makes the selection recommends one or more names for appointment, the recommendation along with the materials considered by the Selection Committee should be placed before the Appointments Committee without further addition or alteration and that if in an exceptional case the Appointments Committee feels that certain material which was not available to be considered by the Selection Committee has come into existence in the meantime and the material is relevant for the purpose of appointment, then the matter should be placed before the Appointments Committee with the additional material for its consideration. The Apex Court held that the action of the Appointments Committee in not appointing candidates recommended by the Selection Committee and in appointing a person in the reserve panel, amounted to interference with the process of selection and that the Appointments Committee has attempted to set at naught the selection. 14. An issue similar to the one involved in the case on hand arose before the Apex Court in Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Jharkhand also held that exclusion of the name of Sri. Ram Kishore Prasad on the basis of the report of the Intelligence Bureau, which was made available to the Honourable the Chief Justice of India and whose concurrence to the proposal was obtained by the Government of India after apprising the Honourable the Chief Justice of India of all the relevant facts, left no scope for judicial review. The Writ Petition was accordingly dismissed. Though Sri. Ram Kishore Prasad attempted to seek a review of the judgment, the review petition was also dismissed. He thereupon moved the Apex Court in appeal. 16. Sri. Kali Das Batish had also likewise filed a Writ Petition in the High Court of Himachal Pradesh. The High Court of Himachal Pradesh proceeded to examine the correctness of the report submitted by the Intelligence Bureau and held that the report submitted by the Intelligence Bureau as regards his performance as a Lawyer, was without substance. The High Court of Himachal Pradesh held that as the ground on which the petitioner was denied appointment has been proved to be non-est, he is entitled to have his case considered afresh without reference to the report submitted by the Inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial 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." 12. 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. 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice 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. 14. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mere inclusion of the name of a candidate in the select list gives him no 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. 18. The issue raised in the case on hand is in my opinion, covered against the petitioner by the decision of the Apex Court in Union of India and others v. Kali Das Batish and another (supra). The pleadings and the materials in the case on hand disclose that though the Selection Committee had initially recommended the name of the petitioner for appointment as Administrative Member of the CAT, after the report from the Intelligence Bureau which contained adverse remarks about him was received, the matter was placed before the Honourable the Chief Justice of India, who in turn, placed the matter before the Selection Committee. The Selection Committee considered the matter and decided to withdraw their earlier recommendation. The Honourable the Chief Justice of India concurred with the decision of the Selection Committee to withdraw their earlier recommendation and the appointing authority also concurred with it. The petitioner was therefore not appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) the consultation with the Honourable the Chief Justice of India is "an inbuilt check against arbitrariness and bias," indicating the absence of need for judicial review on those grounds. Further, the Apex Court has in National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman - AIR 1992 SC 1806 held that the function of a Selection Committee is neither judicial nor adjudicatory, but purely administrative and that they are not required to record reasons for the selection or non selection of a candidate in the absence of any rule or regulation requiring them to do so. No provision requiring the Selection Committee to record reasons for not selecting candidates seeking appointment as Members of the CAT was brought to my notice. Therefore, the Selection Committee was not bound to record reasons for not selecting the petitioner, though they had before the report of the Intelligence Bureau was received, recommended his name for appointment as Administrative Member. This Court exercising the power of judicial review cannot therefore, as held by the Apex Court, sit in appeal over the decision of the Selection Committee or of the Honourable the Chief Justice of India w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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