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PETITIONER: SARWAN SINGH LAMBA & OTHERS

       Vs.

RESPONDENT: UNION OF INDIA & OTHERS

DATE OF JUDGMENT12/05/1995

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) SINGH N.P. (J) VERMA, JAGDISH SARAN (J) SAWANT, P.B. JEEVAN REDDY, B.P. (J)

CITATION:  1995 AIR 1729            1995 SCC  (4) 546  JT 1995 (5)   386        1995 SCALE  (3)457

ACT:

HEADNOTE:

JUDGMENT:                     W I T H           CIVIL APPEAL NO.5062 OF 1993 R.P. Kapoor                                   ...Appellant                     versus Union of India & Others                     ...Respondents                     W I T H           CIVIL APPEAL NO. 5511 OF 1995 (Arising out of SLP(C) No.17232 of 1993) The Industrial & Labour Bar Association Bhopal & Another                   ..Appellants                      versus Union of India & Others                      ...Respondents           A N D           CIVIL APPEAL NO.7486 OF 1993 Union of India                                ...Appellant           versus Daulat Singh & Others                       ...Respondents                     J U D G M E N T AHMADI, CJI      This group  of cases  arise out  of the  judgment/order dated 29.7.1993  in Miscellaneous Petition No.1102/91 passed by High  Court of  Madhya Pradesh  (Indore Bench). The three petitioners before  the High  Court were working on the post of Inspectors  in the  Police Department  of Madhya Pradesh. They sought  to challenge  the  Constitution  of  the  State Administrative Tribunal  (in short  ’SAT’) as  well  as  the appointments  of   the  Vice-Chairman  and  Members  of  the Tribunal  as  the  Government  had  not  complied  with  the direction of  this Court  given in  the case of S.P. Sampath Kumar v. Union of India (1987)1 SCC 124 = AIR 1987 SC 386 to amend the  Administrative Tribunals  Act, 1985  (hereinafter alluded to as ‘the Act’) as suggested by it and had not made

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the appointments after selection by a High Powered Selection Committee as  directed by  the court.  They stated that they could not  obtain a  copy of  the appointment  letter of the aforesaid persons.  They prayed  for Writ of Quo Warranto to show under  what authority  they were  functioning and for a declaration that  the constitution of SAT was null and void. The respondents  Nos.3 to  6 were  Members of  the  SAT  and respondent No.7  was its Vice-Chairman. The respondent Nos.1 and 2  were the  Union of  India and  the  State  of  Madhya Pradesh,  respectively.   The   High   Court   quashed   the appointments of  the respondents  Nos.3 to 7 by the impugned judgment dated 29.7.1993. The respondents Nos.3 to 6 jointly challenge the  judgment in Civil Appeal No.5061 of 1993. The appeal filed  by the respondent No.7 is Civil Appeal No.5062 of 1993.  The Union of India also challenges the judgment in Civil Appeal  No.7486 of  1993. The  Industrial & Labour Bar Association, Bhopal  and another  who  claim  to  have  been intervenors before  the High  Court  have  come  up  with  a special leave  petition (civil)  No.17232 of  1993. We grant them special leave.      Shri R.P.  Kapoor, whose  appointment as  Vice-Chairman and S/Shri  Dr. Narinder  Nath Veermani,  R.M. Rajwade, G.S. Patel and  S.S. Lamba whose appointments as members were set aside by  the High Court are referred to in this judgment as the appellants  whereas the  three police officers who filed the writ  petition before  the High Court are being referred to as the original petitioners.      The main  reason for setting aside the appointments was the alleged  failure on the part of the Government to select the candidates for the posts of members and Vice-Chairman of the Tribunal  through a  High Powered Selection Committee as directed by  this Court in S.P. Sampath Kumar’s case (supra) and in  the review petitions filed subsequently, vide (1987) Supp. SCC  734 and  735. By  the judgment  in  S.P.  Sampath Kumar’s case  (supra) certain  directions were issued to the Union of  India to introduce legislative changes to cure the defects in  the procedure  for appointment  of the Chairman, Vice-Chairman and  Member of  the Tribunal. An amendment was made in  Section 6 of the Act purportedly in compliance with the direction  of this  Court.  The  High  Court  of  Madhya Pradesh has  held that  the amendment  was not in conformity with the  direction of  this Court  and did  not suffice  to ensure the  validity of  the appointments  challenged in the writ petition  before it.  The appeals were heard by a bench of this Court consisting of M.M. Punchhi, S.C. Agrawal, B.P. Jeevan Reddy,  JJ. By  an order  dated  3.5.1994  the  court referred the  matters  to  the  Constitution  Bench  on  the observation that they raised questions of general importance involving the  interpretation of the provisions of Section 6 as amended  by Act 51 of 1987 as well as the validity of the appointments made in accordance with the said provisions and that the  issues affect  the constitution of the CAT and the SAT.      On the  pleadings and  submissions made before the High Court, the  points arising  for  determination  came  to  be formulated in  paragraph 7  of the judgment. These comprised preliminary objections as to (i) bar of jurisdiction in view of Section 28 of the Act (ii) propriety of entertaining such a petition  by disgruntled  litigants in the guise of public interest  litigation   and  (iii)   locus  standi   of   the petitioners. The  other technical  objection raised  was  in regard to  the scope  of a  petition seeking  a writ  of quo warranto. None  of these  objections was  pressed before us. The High  Court next  considered the ambit and import of the observations made by this Court in S.P. Sampath Kumar’s case

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and in  the subsequent  orders emanating from that decision. Based on  the import of the said observations the High Court went into the question whether the appointments of the Vice- Chairman and  Members were  validily made. The High Court on appreciation of  the decision  in  S.P.  Sampath  Kumar  and related cases came to the conclusion that the appointment of a High  Powered Committee  was a sine qua non under the said decisions and  the mere fact that the Chief Justice of India had approved  the appointments  on the  administrative  side would not  render  the  appointments  valid.  Detailing  the procedure followed  in the  matter of  selection,  the  High Court after  referring to the notings in the department file held the  same to  be arbitrary  and discriminatory and even went to the length of describing the same as ’murky’, ’self- motivated’ and  ’biased’  and  in  total  violation  of  the procedure prescribed  by the  Government of  India under its order of  15th April,  1991  and  consequently  quashed  the appointments.  The   petitions  were   allowed   with   cost quantified at Rs. 2,500/-.      The main  question is whether the mode of selection and appointment of  the Chairman,  Vice-Chairman and  Members of the Tribunal  as prescribed  by the  amendment  of  1987  is valid? The  Amendment Act  of 1987  followed the judgment of this Court  in S.P.  Sampath Kumar’s  case (supra)  in which certain infirmities  were pointed  out in the Administrative Tribunals Act,  1985, (hereinafter referred to as ’the Act’) and  certain   directions   were   given   for   introducing legislation to  cure those  defects.  What  this  Court  was required to  consider in  that case was whether constitution of  the   Administrative  Tribunals  under  the  Act,  which excluded  the   jurisdiction  of   the  High   Courts,   was inconsistent with  the concept  of judicial  review, a basic feature of  the constitution. Recalling the law laid down in Minerva Mills  Ltd. v.  Union of  India AIR  1980  SC  1789, Bhagwati, J., said:      "...judicial  review   is  a  basic  and      essential feature  of  the  constitution      and  it   cannot  be  abrogated  without      affecting the  basic  structure  of  the      Constitution and  it  is  equally  clear      from  the   same  decision  that  though      judicial  review  cannot  be  altogether      abrogated by  Parliament by amending the      Constitution   in    exercise   of   its      constituent   power,    Parliament   can      certainly, without  in any way violating      the basic  structure  doctrine,  set  up      effective   alternative    institutional      mechanisms or  arrangements for judicial      review. The  basic and essential feature      of judicial  review cannot  be dispensed      with  but   it  would   be  within   the      competence of  Parliament to  amend  the      Constitution  so  as  to  substitute  in      place  of   the  High   Court,   another      alternative institutional  mechanism  or      arrangement   for    judicial    review,      provided it  is no less efficacious than      the High Court..."      Referring to Article 323A, the learned Judge observed:      "If this  constitutional amendment were to permit a law      made under  clause (1)  of Article 323 A to exclude the      jurisdiction of  the High  Court under Articles 226 and      227  without   setting  up   an  effective  alternative      institutional mechanism  or  arrangement  for  judicial

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    review, it  would be  violative of  the basic structure      doctrine and  hence outside  the constituent  power  of      Parliament. It  must, therefore, be read as implicit in      this constitutional  amendment that  the law  excluding      the jurisdiction  of the  High Court  under Article 226      and 227  permissible under it must not leave a void but      it  must   set  up   another  effective   institutional      mechanism or  authority and  vest the power of judicial      review in  it. Consequently, the impugned Act excluding      the jurisdiction  of the  High Court under Articles 226      and 227  in respect of service matters and vesting such      jurisdiction in  the Administrative  Tribunal can  pass      the test of constitutionality as being within the ambit      and coverage  of clase (2) (d) of Article 323A, only if      it can  be shown  that the Administrative Tribunals set      up under the impugned Act is equally efficacious as the      High Court  so far as the power of judicial review over      service  matter   is  concerned.  We  must,  therefore,      address  ourselves   to  the   question   whether   the      Administrative Tribunal  established under the impugned      Act  can   be  regarded   as  equally   effective   and      efficacious in  exercising the power of judicial review      as the  High Court acting under Articles 226 and 227 of      the Constitution."      The  majority  judgment  in  S.P.Sampath  Kumar’s  case (supra) delivered  by Misra, J. also expressed the same view in these words:      "What, however,  has to  be kept  in view  is that  the      Tribunal should be a real substitute for the High Court      not only  in form  and de  jure but  in content  and de      facto. As was pointed out in Minerva Mills (AIR 1980 SC      1789) the  alternative arrangement  has to be effective      and  efficient   as  also   capable  of  upholding  the      constitutional limitations."      The next  step was  to consider  how to ensure that the Tribunal was  a ’real  substitute’ of the High Court. It was observed that  the things  to be  examined were  whether the judges of  the Tribunal  were equally  efficient/trained and equally independent  as those of the High Court. Said Misra, J. :-      "Disciplined,  independent   and  trained  judges  well      versed in  law and  working with  all  openness  in  an      unattached   and    objective   manner   have   ensured      dispensation  of  justice  over  the  years.  Aggrieved      people approach the court - the social mechanism to act      as the  arbiter -  not under legal obligation but under      the belief and faith that justice shall be done to them      and  the   State’s  authorities   would  implement  the      decision of  the Court.  It is, therefore, of paramount      importance  that   the  substitute  institution  -  the      Tribunal - must be a worthy successor of the High Court      in all  be a  worthy successor of the High Court in all      respects. That  is exactly  what this Court intended to      convey when  it spoke  of an  alternative mechanism  in      Minerva Mill’s case."      The Court  then proceeded to examine the competence and independence of  the Members,  Vice-Chairman and Chairman of the Tribunal.  The Court struck down Section 6(1) (c) of the Act which prescribed that a person who for atleast two years held the  post of  a Secretary to the Government of India or other equivalent  post will  also qualify to be the Chairman of the  Tribunal. This  has no  bearing on  the facts of the Present case.  What is  relevant for  us is  how  the  court viewed the  question so  as to  ensure independence  of  the Members as  well as of the Chairman and Vice-Chairman of the

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Tribunal. The  Act already had a provision that the judicial members would  be appointed  only in  consultation with  the Chief Justice of India but for the Administrative members as well  as   for  the  Chairman  and  Vice-Chairman,  no  such provision was  made, thereby giving unfettered discretion to the Government  to make  such appointments.  It is  in  this context  that   the  court  laid  down  the  mode  of  their selection. To quote from the judgment of Misra, J.:-      "We do not want to say anything about Vice-Chairman and      members dealt  with in  sub-sections (2),  (3) or  (3A)      because so  far as  their selection is concerned we are      of the  view that  such selection  when it  is not of a      sitting judge  or retired  judge of a High Court should      be done  by a  high powered  committee with  a  sitting      judge of the Supreme Court to be nominated by the Chief      Justice of  India as  its Chairman.  This  will  ensure      selection of  proper and  competent people to man these      high offices  of trust  and help to build up reputation      and acceptability."      The Court desired amendments to bring the provisions in accordance with  the observations  made in  the judgment and hoped  that   the  amendments  would  be  brought  about  by 31.3.1987.      Bhagwati, J.  in his  judgment considered the method of appointment  of   the  Judges   of  the   High  Court,  i.e. appointment by the Government in consultation with the Chief Justice of India and observed:-      "Obviously, therefore,  if the  Administrative Tribunal      is created  in substitution  of the  High Court and the      jurisdiction of  the High  Court under Articles 226 and      227 is  taken away  and vested  in  the  Administrative      Tribunal, the same independence from the possibility of      executive pressure or influence must also be ensured to      the  Chairman   and  memebers   of  the  Administrative      Tribunal. Or  else the  Administrative  Tribunal  would      cease  to   be  equally   effective   and   efficacious      substitute for the High Court and the provisions of the      impugned  Act   would  be   rendered  invalid.   I  am,      therefore,  of   the  view   that  the  appointment  of      Chairman,  Vice-Chairman   and  Administrative  members      should be  made by  the concerned Government only after      consultation with  the Chief  Justice of India and such      consultation must be meaningful and effective....".      The method  suggested by  Misra,J. was also accepted by Bhagwati,J. as  an alternative  for ensuring independence of the   Chairman,    Vice-Chairman   and    Members   of   the Administrative Tribunals  but with  a  little  modification. Bhagwati,J. advised  setting up  of a High Powered Selection Committee "headed  by the  Chief  Justice  of  India,  or  a sitting judge  of the  Supreme Court or concerned High Court nominated by  the Chief  Justice of India." Said the learned Judge:      "Both these  modes of appointment will ensure selection      of  proper   and   competent   persons   to   man   the      Administrative  Tribunal   and  give  it  prestige  and      reputation which would inspire confidence in the public      mind in  regard  to  the  competence,  objectivity  and      impariality  of   those  manning   the   Administrative      Tribunal. If  either of  these two modes of appointment      is  adopted,  it  would  save  the  impugned  Act  from      invalidation. Otherwise,  it will  be outside the scope      of the power conferred on Parliament under Article 323-      A. I  would, however  hasten to  add that  the judgment      will operate only prospectively and will not invalidate      appointments  already   made  to   the   Administrative

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    Tribunal."      The amendment  that has  been brought  about in Section 6(7)  by   Act  51  of  1987  is  to  the  effect  that  the appointments to  the post  of  Chairman,  Vice-Chairman  and Members shall not be made except after consultation with the Chief Justice of India.      It  needs   to  be  mentioned  here  that  the  Central Government,  in   view  of  the  discrepancy  in  the  views expressed by the two learned judges, sought clarification by filing a review petition which was decided by an order dated 5.5.1987  reported  in  (1987)  Supp.  SCC  734.  The  Court ordered:      "Having considered  the matter  carefully we are of the      opinion that  in the case of recruitment to the Central      Administrative Tribunal the appropriate course would be      to appoint a High Powered Selection Committee headed by      a sitting Judge of the Supreme Court to be nominated by      the Chief  Justice of  India,  while  in  the  case  of      recruitment to  the State Administrative Tribunals, the      High Powered  Selection Committee should be headed by a      sitting Judge  of the High Court to be nominated by the      Chief Justice of the High Court concerned."      The Central Government yet again filed review petitions Nos. 520-23  of 1987  seeking modification  of  the  court’s order to the effect that consultation with the Chief Justice of India alone be prescribed as sufficient because selection by a  High Powered Selection Committee was likely to be time consuming. The review petitions also prayed for extension of time for  bringing about the amendments. It appears from the order reported  in (1987)  Supp. SCC  737 that the court did not make  any order  on the  prayer for  modification of the order although  it granted extension of time prayed for. Two questions that confront us at this stage are:      (a) Whether the direction to set up a High Powered      Selection Committee was mandatory or simply advisory in      nature; and      (b) Whether non compliance of the direction in making      the amendment vitiates the amendment;      The judgment,  carefully read,  clearly indicates  that the direction  for  setting  up  a  High  Powered  Selection Committee  was   merely  advisory   and  not   mandatory  in character. The  Act originally  provided that  the  judicial members were  to be  appointed after  consultation with  the Chief Justice  of India.  Neither Bhagwati,J.  nor Misra, J. has found  fault with  it. Bhagwati,J.  indicated that since there is  no such provision for the selection/appointment of the  Chairman,  Vice-Chairman  and  Administrative  Members, there was  a risk  that they  would not  be  independent  of executive influence.  Hence Bhagwati,J.  suggested that  the Chairman, Vice-Chairman  and Administrative  Members  should also be  appointed only  after consultation  with the  Chief Justice of India. Misra,J. suggested appointment of the High Powered Selection  Committee for  all including the judicial members without  indicating why selection after consultation with  the   Chief  Justice  of  India  was  not  acceptable. Obviously, Misra,J.  did not discard the method of selection of  judicial  members  after  consultation  with  the  Chief Justice of  India. Nor  did Bhagwati,  J. Even in the orders passed  on  the  review  petitions  no  observation  against appointments after  consultation with  the Chief  Justice of India was made.      The Court  was confronted  with the problem of ensuring independence of  the personnel  of the Tribunal. There could be several  ways of  ensuring such independence. Bhagwati,J. mentioned two  such methods while Misra,J. advocated one. In

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the review petition again the Court altered the constitution of the  High Powered  Selection Committee  by saying that it should be headed by a Supreme Court Judge when selecting the members of the Central Administrative Tribunal but by a High Court  judge  when  seleclting  the  members  of  the  State Administrative Tribunals. Coming to selection of the Members of the  High Powered  Selection Committee  itself, the Court did not  make any suggestion or order. It cannot be disputed that many other methods for selection to ensure independence of the  personnel of  the Tribunal  could be  suggested. The Court itself  considered some  of  the  possible  modes  and preferred the  one mentioned in the order in review reported in (1987)  Supp. SCC  734. In the subsequent review petition in which  the Government again wanted only consultation with the Chief  Justice of  India to be accepted as the method of selection of  the candidates the Court did not reiterate the previous decision. Nor did it say that the appointment after consultation  with  the  Chief  Justice  of  India  was  not acceptable. It ordered as under :      "In view  of what  has been  stated before  us  by  the      learned Attorney  General of  India, we extend the time      granted to the Union of India upto January 31, 1988 for      introducing necessary  changes in  the statute  through      legislative enactment  in Parliament  or by  issuing  a      Presidential  Ordinance.   We  trust  it  will  not  be      necessary now  for the  Union  of  India  to  seek  any      further extension  of time  as  this  matter  has  been      pending  for  a  long  time.  The  civil  miscellaneous      petitions are disposed of accordingly."      On behalf  of the  Union of  India it is submitted that the previous  order regarding  the  High  Powered  Selection Committee stood  modified by  this order  and the Government accordingly  introduced   the  Amending  Act  only  to  make provision for  consultation with the Chief Justice of India. Although it  cannot be  said that the prayer of the Union of India to  introduce  the  provision  to  consult  the  Chief Justice of India in preference to the High Powered Selection Committee was allowed by the court, it can be perceived that the court  itself did not reject the prayer or reiterate the previous suggestion.  That means  the view  expressed in the order dated 5.5.1987 stood unaltered.      Now we  come to  the next  question, viz., whether non- compliance with  the direction  regarding the  High  Powered Selection Committee vitiates the amendment. Normally even an obiter dictum  is expected to be obeyed and followed. In our view further  discussion would  be purely  academic for  the simple reason  that without  amending Section 6(7) the dicta of the  Court  has  in  fact  been  made  effective  by  the appointment of High Powered Selection Committees both at the Central level  as  well  as  the  State  levels  with  minor modifications. Since  these Committees  are now  expected to make the choice of candidates whose names may be recommended to the  Chief Justice of India for final approval, the order of 5.5.1987  is fully complied with. Of course, names may be suggested to  the Committee  by any  source but the ultimate decision has  to be  taken by the Committee and if the Chief Justice of  India is  not personally  heading the Committee, the final  decision would  have to  be taken  by him  on the recommendation of  the Committee.  It would,  thus, be  seen that without amending Section 6(7), the Government has given effect to  the Court’s  view expressed  in the  order  dated 5.5.1987  which   renders   the   challenge   academic   and unnecessary to examine.      The next  question is what was the scope of the enquiry before the  High Court?  In para  2 of the impugned judgment

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the High Court has disclosed that the petitioners challenged the validity  of the  appointments of the appellants as they were made  in violation of the direction of this Court given in S.P.  Sampath Kumar’s  case. The petitioners added at the time of  hearing, as can be seen from para 4 of the impugned judgment, a plea that instead of selection, the appointments were made by nomination without considering all eligible and available candidates  so that the best amongst them could be selected.      The Government  of India  as well  as the Government of Madhya Pradesh  placed  before  the  High  Court  the  files relating to  the impugned  appointments. The  High Court has gone into  a detailed  analysis  of  how  the  proposal  for appointment of  the appellants  was mooted  and how the same was processed  right upto  the then  Chief Justice of India. The High  Court  observed  that  the  entire  procedure  was fraudulent not  only because  of the Government’s failure in bringing about  a proper  amendment but  also because of the failure on  the part  of Government  of  Madhya  Pradesh  to select  the   candidates  through   a  Selection   Committee appointed  by   the  Government   of  India   on  15.4.1991. Admittedly,  intimation  thereof  was  given  to  the  State Governments  by  letter  dated  19.4.1991.  The  High  Court further observed  that even the appointment of the Selection Committee was not in accordance with the order of this Court which provided  for appointment  of a High Powered Selection Committee. However,  the Selection  Committee constituted by the Government  of India comprised only the Chief Justice of the High Court, the Chief Secretary and the Law Secretary.      The High  Court on  an analysis of the various notes on the Government  files observed that the appellants R.P.Kapur and G.S.Patel  used their  own influence  as Chief Secretary and Law  Secretary to  get themselves appointed on the State Administrative Tribunal  and, therefore,  their appointments were fraudulent.  The appellants  pointed out  that the High Court committed  serious  errors  in  appreciating  how  the selection  process  moved.  In  fact  when  the  High  Court examined the  files  of  the  Government,  the  hearing  had concluded  on   16.12.1992  and   the  appellants   had   no opportunity to  explain the various notes on the files since the same  were produced  in Court  on 29.7.1993. This itself was against  the rules  of natural  justice.  Moreover,  the applicants did  not allege  that the  appointments had  been secured  by  the  appellants  by  practising  fraud  on  the Government and were, therefore, bad. Was it open to the High Court to  enter upon  an enquiry  of this  nature within the ambit of the writ jurisdiction?      It is  not in dispute that all the appellants were duly qualified and  eligible for the posts against which they had been appointed.  There is no allegation that any of them was not suitable for any reason whatsoever. All of them had been appointed after  consultation with the then Chief Justice of India. There  was no  violation of any law in the process of their appointments.      The judgment  in S.P.Sampath Kumar’s case was delivered in 1987.  In that  very year,  the Act  had been  amended in compliance with  the judgment.  The Selection  Committee was appointed only  on 15.4.1991.  This was  communicated to the State Government on 19.4.1991. In the order dated 15.4.1991, as quoted in the impugned judgment, there is no reference to the judgment  of this Court. As such although it can be said that this  order of  appointment of  the Selection Committee must have  been inspired  by the judgment, it cannot be said that this  was solely  in obedience  to the  order  of  this Court. It  is clear, as observed by the High Court, that the

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Selection Committee  was not  a High  Powered Committee.  As such  failure   to  process  the  appointments  through  the Selection Committee  will not  mean non-compliance  with any order of  this Court  or of any statutory provision. We must not lose  sight of  the fact  that the  Government of  India itself, despite  such  order  of  appointment  of  Selection Committee, approved  the proposals  for appointment. In fact the appointments  of  the  appellants  other  than  that  of R.P.Kapur had  already been approved by the Chief Justice of India before  the appointment of the Selection Committee was communicated to  the State  Government. On  15.4.1991 itself the file  with the  proposal of the appointments was sent to the Chief  Justice of  India with  the approval of the Prime Minister mentioning  further that  in view  of  the  Supreme Court order  of 9.4.1991  in Writ  Petition No.  497 of 1990 Shailendra Kumar  Gangrade &  Anr. vs. Union of India & Ors. for making  appointments in  State  Administrative  Tribunal within four  weeks time,  the matter  was urgent.  The  then Chief Justice of India accorded his approval on 18.4.1991 to the appointments  of Messrs  Lamba, M.N. Virmani, G.S. Patel and Rajwade.  It would  not be proper to say that because on 15.4.1991 the  Government of India constituted the Committee for selection  which was  not even communicated to any State Government till  19.4.1991, the approval granted by the then Chief Justice  of India  be set  at  naught  and  the  whole process of selection/nomination be redone.      So  far   as  appellant  R.P.Kapur  is  concerned,  the Selection Committee  could not  be  ignored.  His  name  was proposed by  the Chief  Minister himself  on 27.4.1991.  The proposal  was  approved  by  the  Government  on  30.4.1991. Subsequently, however, the Secretary, General Administrative Department, noted  that the  proposal had  to be sent to the Selection Committee. It was further noted by him on the file that  the   Chief  Secretary  himself  being  the  candidate proposed  could   not  be   associated  with  the  Selection Committee. The  Committee, therefore, of necessity comprised only of  the Chief  Justice of  the  High  Court  of  Madhya Pradesh and  the Law  Secretary. The  Chief Justice approved the name  of R.P.  Kapoor when the file was presented to him by the  Law Secretary  himself.  The  Law  Secretary’s  note itself mentions  constitution of  the Committee  as also his own approval  to the  proposal to appoint R.P. Kapoor as the Vice-Chairman. The  High Court,  in the  impugned order  has observed that  the Chief  Justice was  not  told  about  the appointment of  the Selection  Committee. This  is, however, not borne out from any record. It has to be presumed that in the usual  course of  business the  Chief Justice  had  gone through the entire file before according his approval to the proposal to  appoint R.P.Kapoor  as the Vice-Chairman of the State Administrative  Tribunal, Madhya  Pradesh. Out  of the three members  of the  Selection Committee,  one, being  the candidate himself,  could not  participate in  the selection process. The  other two,  namely, the  Chief Justice  of the High Court  and the  Law  Secretary  approved  the  name  of R.P.Kapoor. It  cannot be  said that merely because the name of  R.P.Kapoor   was  mooted  by  the  Chief  Minister,  the subsequent  approval   by  the   members  of  the  Selection Committee was  bad. It may be said at the cost of repetition that there  is  no  averment  that  there  was  anyone  more suitable than  R.P.Kapoor for  the post of the Vice-Chairman who was deliberately ignored by either the Chief Minister or the Selection  Committee or  the State Chief Justice. Nor is there any  averment that  for some  reason R.P.Kapoor should not  have   been  appointed   the   Vice-Chairman   of   the Administrative Tribunal.  The finding of the High Court that

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the appointments  of R.P. Kapoor and G.S.Patel were vitiated because their  appointments were  the result  of  their  own machination cannot  be upheld. Nor can it be said that their appointments were  fraudulent or  otherwise  vitiated.  This High Court seems to have read too much from the notes on the file and,  with respect,  has drawn unsustainable and wholly unwarranted  inferences   based  on,   if  we  may  say  so, suspicion.      Before we  part we  would like  to make  a few  general observations. As has been pointed out earlier long after the hearing had  concluded the  Court had  called for  the files which were  produced on  29.7.1993. The  Court inspected the files and  has drawn its own conclusions on the basis of the notings without  giving the parties, the appellants, against whom the  inferences were  drawn any  opportunity to explain the same. This was clearly in violation of the basic rule of natural justice.  The Court  should have been extra cautious since  it   was  casting   serious  aspersions  against  the appellants, particularly,  R.P.Kapoor. As  we shall  briefly point out,  the conclusion that " the appointments ..... are result  of   murky  self-motivated  machinations"  and  are, therefore, "vitiated  by bias",  is not  borne out  from the material relied  on by the High Court. In the first place it must be  remembered that  the original petitioners had filed writ petitions  in the High Court wherein they had sought an interim order  against their  repatriation to  their  parent department. On  the constitution  of the Tribunal their writ petitions were  transferred to  the Tribunal. The Government had moved  an application for vacating the interim order and apprehending that  the stay  may be vacated, they challenged the constitution  of the  Tribunal. The idea was to paralyse the Tribunal and prevent it from hearing their petitions for otherwise ordinarily  the litigant  would like that his case proceeds. In  the circumstances  it is difficult to say that the petitioners  were actuated  by considerations  of public interest. Secondly,  it is  not  in  dispute  that  all  the Members/Vice-Chairman  were  eligible  for  appointment,  in that,  they  were  fully  qualified.  Thirdly,  it  must  be remembered tht  the proposal  for the appointment of Members had been  initiated  much  before  15.4.1991  and  had  been cleared by the State functionaries long before that date and by the  then Chief  Justice of India before the decision was communicated by  the Central  Government to  the  States  on 19.4.1991. It is legitimate to assume that the proposal must have been  thoroughly scrutinised  by the  Chief Justice  of India before  he gave  his approval to the same. Fourthly it is necessary  to notice that R.P.Kapoor was on deputation to the Government of India since 1980 and he was repatriated to the State in 1990 and, therefore, in the absence of positive evidence of  his interference  it would  not be  correct  to attribute motives to him for the State Government’s decision to shift  the seat  of Vice-Chairman  to Bhopal on 4.1.1989. Actually in  1989 he  was stationed  at Hyderabad. Similarly much has been read into the note, discuss, made on 6.3.1991. As explained  by R.P.Kapoor  in his  submissions before this Court that  he desired  to discuss the matter as he had some doubt in  regared to  the vacancy  position  which,  as  the subsequent note  of the  Secretary, GAD., would show, turned out to  be correct. So also much ado has been made about the Law Secretary  personally carrying  the file  to Patna where the Chief  Justice of Madhya Pradesh was then camping. There was urgency  for the  clearance of  the file  because of the time-frame set  by judicial  orders. It  is wrong to read in this visit  any oblique  motive. The  Law Secretary  in  his capacity as  a member  of the Committee was deputed to go to

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Patna so that he may be able to apprise the Chief Justice of the proposal  and explain  any matter  on which  the  latter would need  clarification. It is wrong to infer that the Law Secretary felt obliged to R.P. Kapoor because the latter had not recommended the former’s name but the recommendation had come from  the then Chief Minister. Even if in normal course of business R.P.Kapoor had in fact recommended his name as a part of  his duty,  that should  not  make  any  difference. Besides, it  is clear  from  the  affidavit  of  the  Ex-Law Secretary that  he knew  that his appointment was cleared by the Government  of India  long before he proceeded to Patna. There was,  therefore, no  question of  his being  under the influence of  R.P.Kapoor so  as to  affect  his  independent judgment. It is indeed true that R.P. Kapoor in his capacity as Chief  Secretary forwarded the file to the Chief Minister on 11.4.1991  proposing his  name as Vice-Chairman which was returned by  the Chief  Minister to  the Secretary,  GAD, on 27.4.1991. Did  forwarding of  the file  amount  to  ’active association’ with  the process of appointment? The fact that under the  Rules of Business framed under Article 166 of the Constitution, it  is not disputed that the normal channel of submission was  through the  Chief  Secretary.  Two  options were, therefore,  available to  R.P.Kapoor; either  he as  a part of  his duty  forward the file or refuse to endorse the file. There  is nothing  else on  record to  show his active participation thereafter.  So  far  as  Secretary,  GAD,  is concerned, he marked the file to the Chief Secretary, as per the Rules  of Business. There was nothing else he could have done. The  Chief Secretary could have avoided to endorse the file but  to do  so also  he would have been required to say so. He  chose to  quietly forward  the  file  to  the  Chief Minister without  his own  comment. It  seems to us that the High Court  read too  much  in  this  action  of  the  Chief Secretary  in   describing  the   ultimate  appointment   as fraudulent. After  all when  the name  of a  Chief Secretary about  to   retire  is   proposed  for  appointment,  it  is impossible to  think that the Chief Secretary would not know about it,  if the  Chief Secretary  pretends  ignorance,  no court will  accept the  same as  correct. Therefore, even if the Chief  Secretary had not endorsed the file, it would not have made  any difference.  It was  ultimately for the Cheif Minister to  take a decision which was to be approved by the Governor as  well as the Chief Justice of India. There is no hint on record to infer that he had in any manner influenced the  decision  of  these  functionaries.  Therefore,  merely because he forwarded the file to the Chief Minister which he was required  to do as per the extant Rules of Business that ought not  to be  construed  as  an  act  to  influence  the decision  of   the  aforesaid  functionaries.  Even  without signing the file in normal course of business, he could have done  the   ’goading  and  egging’  while  pretending  total ignorance. We  are, therefore,  of the  view that  the  High Court read  too much  in this  act of  the  Chief  Secretary R.P.Kapoor. This  suspicion of  the High Court unfortunately coloured its  vision resulting  in it viewing each and every action leading  to his appointment with suspicion. These, in brief,  are  a  few  aspects  of  the  case  which  we  have highlighted to  demonstrate how  the High Court fell into an error and misdirected itself causing miscarriage of justice. We must  undo this  injustice by  allowing this  appeal  and setting aside  the impugned  judgment and  order of the High Court and giving appropriate directions as under.      The  appellants  should  be  allowed  to  resume  their office. Hence  we direct  that the  appellants,  as  far  as possible, be  allowed to  resume their office unless any one

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or more  of them  has or  have retired.  In case any of them have since  attained the  age of  retirement, the State will treat them  as on  duty upto the date of retirement and work out their  retiral benefits  accordingly. All the appellants shall be  entitled to arrears of pay and allowances from the date of  judgment  of  the  High  Court  upto  the  date  of resumption of  duty  or  date  of  retirement.  The  appeals succeed accordingly  and the  original  writ  petition  will stand dismissed.      We are  satisfied beyond  any manner  of doubt that the petitions filed  by the three police Inspectors were, to say the least,  motivated  with  a  view  to  deriving  personal benefits and  not in  public interest.  Their  idea  was  to paralyse the  working of  the Tribunal  and benefit from the delay at  the cost  of other  litigants. Otherwise  how were they concerned  with the  legality  of  their  appointments? This, in our view, is a glaring case of abuse of the process of the  Court in  the name  of  public  interest.  Can  such petitioners be  allowed to get away unscathed? We think they must be  saddled with exemplary costs. We, therefore, direct that each  petitioner shall  pay a sum of Rs.15,000/- by way of costs.  The amount  of cost  may be  recovered  from  the provident fund/gratuity or any other future monetary benefit including pension  or in  ordinary course  by executing  the order.