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TMI Blog2019 (1) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ter placed before the ACC which comprises the Prime Minister of India (who is the Chairman of the ACC) and the Union Minister for Home Affairs in the first instance on 1st February 2017. The ACC on that date did not take a decision as to the appointments of the two Appellants. The ACC called for a fresh IB Report in respect of the two Appellants. Thereafter for the second time on 1st August 2017, the ACC considered the case of the two appellants along, in light of the fresh IB report and decided not to appoint them as Presiding Officers. This was then communicated to each of them by separate Om dated 8th August, 2017. In the present case, the ACC was the final authority. The fact that the ACC called for a fresh IB report is an indication that it wanted to be doubly sure before acting on the first report of the IB. This could be viewed as an extra check against arbitrariness arising from a subjective assessment of the person preparing the IB report. There was no need for the ACC to disclose why it was asking for a fresh IB report. Much less was there any requirement in law for ACC for the Respondents to inform the Appellants why the ACC asked for a fresh IB report. Appeal dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were pending consideration before the ACC and a decision was expected soon. However, when for more than six months there was no response, applications were filed by both the Appellants in this Court. In those proceedings, the Respondents produced copies of the office memorandum dated 8th August 2017 informing each of the Appellants that the proposal for their respective appointments as Presiding Officers of the DRT had been declined by the ACC. 5. Thereafter fresh writ petitions were filed by both the Appellants. While the Appellant in LPA 52 of 2018 filed W.P. (C) No. 7053 of 2017, the Appellant in LPA 60 of 2018 filed W.P. (C) No. 7050 of 2017 in this Court challenging the decision of the ACC. These two writ petitions have been dismissed by the impugned common judgment of the learned Single Judge. 6. Before the learned Single Judge, the main submission of the Appellants was that the ACC had acted arbitrarily in differing from the recommendation of the Selection Board and previous decision of the ACC without giving any reasons. The learned Single Judge called for and examined the records and observed as under: 5. The record of ACC in a sealed cover has been produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not the question of merit or suitability but is of a vital importance of an adverse report from Intelligence Bureau. 8. In these circumstances, the learned Single Judge was of the view that the decision of the ACC appeared to be justified in the light of fresh report from the Intelligence Bureau. 9. When the present appeals were heard on 12th October 2018 before the predecessor Division Bench, the records were again produced. The order dated 12th October, 2018 of the Division Bench reads thus: The appellants had applied for the post of Presiding Officer, Debt Recovery Tribunal at Jaipur and Aurangabad respectively. Their applications were duly considered and the appellants were directed to appear before the Selection Committee comprising of a Sitting Judge of the Supreme Court of India; Secretary, Department of Economic Affairs; Secretary, Department of Legal Affairs; Deputy Governor, RBI; and Secretary, Department of Financial Services on 13.03.2016. The names of the candidatures of the appellants were recommended and forwarded to the ACC. The ACC declined the appointments, which has led to the filing of the present appeals. The original record was called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh IB report in his case. 13. Mr. Makhija in his reply referred to the impugned judgment of the learned Single Judge and pointed out how the records were shown not only to the learned Single Judge but also to the Division Bench. He further pointed out that the Division Bench on perusal of the record commented that the view of the ACC on the report of the IB could be 'subjective' and therefore requested the ACC to again look into the matter. 14. The above submissions have been considered. The present appeals concern the appointments to the post of Presiding Officer of the DRT which is a statutory tribunal set up under Section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereafter 'the DRT Act'). The Statement of Objects and Reasons of the DRT Bill noted that its purpose was the creation of special tribunals with special powers of adjudication of such matters and speedy recovery as critical to the successful implementation of the financial sector reforms . It was noted that the existing procedure for recovery of debts due to banks and financial institutions had blocked a significant portion of their funds in unproductive assets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-tax or Excise and Customs or Administration, have now become an essential part of the judicial system in this country. Such specialised institutions may not strictly come within the concept of the judiciary, as envisaged by Article 50, but it cannot be presumed that such tribunals are not an effective part of the justice delivery system, like courts of law. It will be seen that for a person to be appointed as a Presiding Officer of a Tribunal, he should be one who is qualified to be a District Judge and, in case of appointment of the Presiding Officer of the Appellate Tribunal he is, or has been, qualified to be a Judge of a High Court or has been a member of the Indian Legal Service who has held a post in Grade-I for at least three years or has held office as the Presiding Officer of a Tribunal for at least three years. Persons who are so appointed as Presiding Officers of the Tribunal or of the Appellate Tribunal would be well versed in law to be able to decide cases independently and judiciously. It has to be borne in mind that the decision of the Appellate Tribunal is not final, in the sense that the same can be subjected to judicial review by the High Court under Articles 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Governor of the Reserve Bank; ( v) Secretary or Additional Secretary to the Government of India in the Ministry of Finance, Department of Financial Services.] 21. Further Rule 3 (2) states that the Chief Justice of India or the Judge of the Supreme Court shall be the Chairman of the Selection Committee. Rules 3 (5) and 3 (6) read as under: (5) The Selection Committee shall recommend persons for appointment as Presiding Officer ( i) from amongst the persons on the list of candidates prepared by the Ministry of Finance after inviting applications; ( ii) from amongst judicial officers nominated by a High Court. (6) The Central Government shall on the basis of the recommendations of the Selection Committee make a list of persons selected for appointment as Presiding Officer and the said list shall be valid for a period of two years. The appointment of a Presiding Officer shall be made from the list so prepared. 22. Rules 3 (5) and (6) makes it plain that what the Selection Committee does is to 'recommend' persons for appointment as Presiding Officers. Thereafter the Central Government, on the basis of those recommendations, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to examining essentially the correctness of the decision making process and not the decision itself. The questions that would normally arise are whether the statutorily mandated procedure has been followed? Was the decision based on relevant materials? Did any extraneous factors/materials influence the decision? Was it vitiated by malice in law or facts? Are the reasons for the decision discernible? To satisfy itself on these aspects, the writ Court can, and invariably should, call for the records. 26. That has happened not once, but twice. Both the learned Single Judge and the predecessor Division Bench have indeed perused the records and seen the IB reports. Neither the learned Single Judge nor the Division Bench has been able to be persuaded about any error in the procedure adopted or that any extraneous factors influenced the decision of the ACC. Again, it is not the case of the Appellants, that the IB reports were not relevant material. Therefore, the scope of review gets narrowed even further to whether such IB reports could form the valid basis for the ultimate decision? It must also be noted here that it is not the case of either Appellant that the decision of the ACC n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntment of a Member shall be made, except after consultation with the Chief Justice of India. The two Respondents whose names had been recommended by a Selection Committee chaired by the nominee of the Chief Justice of India, who was a sitting Judge of the Supreme Court of India, and the Secretaries of the Ministries of Law and Justice (Department of Legal Affairs), Personnel and Chairman of the CAT, were nevertheless not appointed as the IB reports subsequently sought were adverse. The noting of the Secretary (Personnel), on the basis of such report, that the Respondents need not be appointed was concurred with by the Chief Justice of India when the files were sent to him. While the second Respondent failed in his challenge before the Jharkhand High Court, the first Respondent succeeded in a similar challenge before the Himachal Pradesh High Court. Both judgments were in appeal before the Supreme Court. 29.2 While agreeing with the Jharkhand high Court and reversing the Himachal Pradesh High Court, the Supreme Court observed: It must be remembered that, a member of an Administrative Tribunal like the CAT exercises vast judicial powers, and such member must be ensured abso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mary dismissal. 29.4 Further, the Supreme Court observed: 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. 29.5 The only difference in the present case is that the final appointment of the Presiding Officer of the DRT does not require, in terms of the provisions of the DRT Act and Rules, consultation with the Chief Justice of India whereas in the above case, in terms of the AT Act, it did. In the present case, the ACC was the final authority. The fact that the ACC called for a fresh IB report is an indication that it wanted to be doubly sure before acting on the first report of the IB. This could be viewed as an extra check against arbitrariness arising from a subjective assessment of the person preparing the IB report. There was no need for the ACC to d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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