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CASE NO.: Appeal (civil)  4106 of 2002 Appeal (civil)  4107 of 2002 Appeal (civil)  4404 of 2002 Review Petition (civil)  398 of 2002

PETITIONER: V.K. Majotra     Shambhu Dayal    Union of India & Ors.    Gopal Singh      

RESPONDENT: Union of India & Ors.    Union of India & Ors.,   Shambhu Dayal & Ors.,    Union of India & Ors.    

DATE OF JUDGMENT: 09/09/2003

BENCH: R.C. Lahoti & Ashok Bhan.

JUDGMENT: J U D G M E N T

BHAN, J.

       This judgment shall dispose of Civil Appeal No. 4107 of 2002, Civil  Appeal No. 4404 of 2002 impugning the final order dated  9th April, 2002  passed by the High Court of Allahabad, Civil Appeal No. 4106 is directed  against the interim order dated 25th February, 2002 passed in the writ  petition while it was pending in the High Court and Writ Petition (C) No.  398 of 2002 filed under Article 32 of the Constitution of India by Shri Gopal  Singh, Administrative Member, Central Administrative Tribunal, Jodhpur  Bench, at Jodhpur, challenging the empaneling of Shri V.K.Majotra,  respondent No. 5 on the ground that he was not qualified to be chosen as  Vice-Chairman of Central Administrative Tribunal.  The point raised in all  the cases being common, the same are taken up together for disposal.

       The facts are:

       Shambhu Dayal, appellant in Civil Appeal No. 4107 of 2002 filed  Writ Petition No. 8248 of 2002 in the High Court of Allahabad challenging  the panel prepared for the post of Vice-Chairman in various branches of the  Central Administrative Tribunal (hereinafter referred to as ’the Tribunal’) in  India and seeking for preparation of a fresh panel.  Empanelment of V.K.  Majotra, respondent No.5, was challenged on the ground that he was not  qualified to be chosen for the post of Vice-Chairman to the Tribunal.  He  also impugned the constitutional validity of  Explanation to Section 6 of the  Administrative Tribunals Act, 1985 (hereinafter referred to as ’the Act’)  being ultra vires of the Constitution of India and inoperative.   

By an interim order dated  25th February, 2002 the High Court being  prima facie of the opinion that only a sitting or retired High Court Judge or  an advocate who is qualified for appointment as a High Court Judge could  be appointed as Vice-Chairman of the Tribunal issued a direction that in the  panel already prepared for appointment of Vice-Chairman of various  Branches of the Tribunal and in future panels also only the person referred to  Section 6 (2) (a) of the Act could be appointed as the Vice-Chairman of the  Tribunal.             Aggrieved against the interim order of 25th February, 2002 Mr. V.K.

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Majotra filed Civil Appeal No. 4106 of 2002 in which leave was granted and  operation of the interim order dated 25th February, 2002 passed by the High  Court  was stayed.

       The writ petition was taken up for final disposal by the High Court on  9th April, 2002.  Instead of disposing of the writ petition on the pleas raised  in the writ petition or the points raised by the counsel for the parties during  the course of the arguments, the High Court going completely off the tangent  went on to hold that the Vice-Chairman of the Tribunal should be from a   legal background and can only be a sitting or retired High Court Judge or an  advocate who is qualified for appointment as a High Court Judge.  It was  held that in the instant panel prepared by the Government and in all future  panels only the person referred to in Section 6 (2)(a) of the Act can be  appointed as the Vice-Chairman of the various benches of the Tribunal.  It  was also observed that there are number of Tribunals in the country like  CEGAT, Board of Revenue, Income Tax Appellate Tribunal etc., which  should have persons from a legal background as the presiding Judge to  maintain the confidence of the public.  That the senior member of every  Tribunal must be a person with a legal background as presiding officer of the  Tribunal which would ensure compliance of the mandate of Article 50 of the  Constitution of  India.  A direction was issued to the authorities including  the Government to take speedy steps to ensure compliance of the judgment  and appoint as presiding Judge of every Tribunal a person with a legal  background so that the Tribunal may be independent and inspire confidence  of the public.  If it is a single member bench, then the person must be from a  legal background.  Registrar General of the High Court was directed to send  copies of the judgment to the Secretary, Law Department, Union of India,  the secretary Personnel and Appointment Department, Union of India, the  Cabinet Secretary of Union of India and to the Chief Secretary of the U.P.  Government as also to the Chairman of the CAT and other appropriate  authorities for due compliance.

       Appeals have been filed by the Union of India, writ petitioner  Shambhu Dayal as well as V.K. Majotra, whose appointment was challenged  in the writ petition taking strong exception to the manner in which the  petition has been disposed of and the decision arrived at by the High Court.    It is contended that point on which the writ petition was disposed of was  neither raised in the pleadings nor argued before the High Court by any of  the parties to the writ petition; that point raised in the writ petition has  neither been adverted to or adjudicated upon by the High Court and  that the  High Court was wrong in adopting such an approach.  As to whether a  person not having judicial experience could  be appointed as Vice-Chairman  of the Tribunal was not questioned in the writ petition.  Similarly, vires of  Section 6(2) (b) (bb) and (c) were not challenged.  High Court without  striking down the provisions of Section 6 (2) (b) (bb) and (c) has obliterated  them from the statute book by holding that henceforth  the appointment to  the post of Vice-Chairman be made only from amongst the persons  mentioned in Section 6 (2) (a) of the Act.  It is further contended that the  High Court did not stop at giving direction that the Vice-Chairman of CAT  should be from amongst the persons having judicial training but went a step  ahead to hold that CEGAT, Board of Revenue, Income Tax Appellate  Tribunal etc., which were not even remotely connected to the dispute in the  writ petition should also be manned by persons having judicial training and  no administrative member should be appointed as the presiding officer of  such a Tribunal.  No notice had been issued to the concerned or the affected  parties.   Such a direction is totally unsustainable in law being in violation of  principles of natural justice if not anything more.  Lastly,  it was contended  that the impugned judgment of the High Court runs contrary to the view  taken by this Court and therefore bad in law.   

       Counsel for the parties have been heard at length.   

We have perused the pleadings of the writ petition and the counter  affidavits filed by the respondents before the High Court.  Counsel for the  parties are right in submitting that the point on which the writ petition has

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been disposed of was not raised by the parties in their pleadings.  The parties  were not at issue on the point decided by the High Court.  Counsel for the  parties are also right in contending that the point raised in the writ petition  was neither adverted to nor adjudicated upon by the High Court. It is also  correct that vires of Section 6(2) (b) (bb) and (c) of the Act were not  challenged in the writ petition.  The effect of the direction issued by the  High Court that henceforth the appointment to the post of Vice-Chairman be  made only from amongst the sitting or retired High Court Judge or an  advocate  qualified to be appointed as a Judge of the High Court would be  that Sections 6 (2) (b) (bb) and (c) of the Act providing for recruitment to the  post of Vice-Chairman from amongst the administrative services have been  put at naught/obliterated from the statute book without striking them down  as no appointment from amongst the categories mentioned in clauses (b)  (bb) and (c) could now be made. So long as Section 6 (2)(b)(bb) and (c)  remains on the statute book such a direction could not be issued by the High  Court.  With respect to the learned Judges of the High Court we would say  that the learned Judges have over stepped their jurisdiction in giving a  direction beyond the pleadings or the points raised by the parties during the  course of the arguments.  The writ courts would be well advised to decide  the petitions on the points raised in the petition and if in a rare case keeping  in view the facts and circumstances of the case any additional points are to  be raised then the concerned and affected parties should be put to the notice  on the additional points to satisfy the principles of natural justice.  Parties  cannot be taken by surprise.  We leave the discussion here.

We are also in agreement with the submissions made by the counsel  for the appellants that the High Court exceeded its jurisdiction in issuing  further directions to the  Secretary, Law Department, Union of India, the  secretary Personnel and Appointment Department, Union of India, the  Cabinet Secretary of Union of India and to the Chief Secretary of the U.P.  Government as also to the Chairman of the CAT and other appropriate  authorities  that henceforth the appointment to the post of  presiding officer  of various other Tribunals such as CEGAT, Board of Revenue, Income Tax  Appellate Tribunal etc.,  should be from amongst the judicial members  alone.  Such a finding could not be recorded without appropriate pleadings  and notifying the concerned and affected parties.            The relevant provisions of Section 6 read as under:

"6.  Qualifications for appointment of Chairman,  Vice-Chairman or other Members.- (1) A person  shall not be qualified for appointment as the Chairman  unless he â\200\223

(a)     is, or has been, a Judge of a High Court; or

(b)     has, for at least two years, held the office of  Vice-Chairman.                  (2) A person shall not be qualified for appointment as  the Vice-Chairman unless he â\200\223

(a)     is, or has been, or is qualified to be a Judge of a  High Court; or  (b)     has, for at least two yeas, held the post of a  Secretary to the Government of India or any  other post under the Central or a State  Government carrying a scale of pay which is  not less than that of a Secretary to the  Government of India; or  

(bb)    has, for at least five yeas, held the post of an   Additional Secretary to the Government of  India or any other post under the Central or a

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State Government carrying a scale of pay which  is not less than that of an Additional Secretary  to the Government of India; or  

(c)     has, for a period of not less than three years,  held office as a Judicial Member or an  Administrative Member.

xxx                     xxx

(6) The Chairman, Vice-Chairman and every other  Member of Joint Administrative Tribunal shall,  subject to the terms of the agreement between the  participating State Governments published under sub- Section (3) of Section 4, and subject to the provisions  of sub-section (7), be appointed by the President after  consultation with the Governors of the concerned  States.

Explanation.- In computing, for the purposes of this  Section, the period during which a person has held  any post under the Central or a State Government,  there shall be included the period during which he has  held any other post under the Central or a State  Government (including an office under this Act)  carrying the same scale of pay as that of the first  mentioned post or a higher-scale of pay.

(7)     No appointment of a person possessing the  qualifications specified in this Section as the  Chairman, a Vice-Chairman or a Member shall be  made except after consultation with the Chief Justice  of India."

       Reading  of the above provisions make it clear that Chairman can be  appointed under Section 6 (1) (a) from amongst the sitting or retired Judges  of the High Court or if he has held the office of Vice-Chairman for two  years.  The eligibility for the appointment of Vice-Chairman is provided in  clauses (b) (bb) and (c) of Section 6 (2). Clause (a) provides that  appointment can be  made of a person who is or has been or is qualified to  be a Judge of a High Court; Clause (b) provides that a person has for at  least two yeas, held the post of a Secretary to the Government of India or  any other post under the Central or a State Government carrying a scale of  pay which is not less than that of a Secretary to the Government of India;  Clause (bb) provides that a person has, for at least five yeas, held the post of  an  Additional Secretary to the Government of India or any other post under  the Central or a State Government carrying a scale of pay which is not less  than that of an Additional Secretary to the Government of India; and Clause  (c) provides that a person has, for a period of not less than three years, held  office as a Judicial Member or an Administrative Member.

       Administrative Tribunals Act was enacted in the year 1985 by the  Parliament under Article 323-A of the Constitution.  Constitutional validity  of this Act was challenged and upheld by the Constitution Bench of this  Court in S.P. Sampath Vs. Union of India & Ors., 1987 (1) SCC 124.  Vires  of the provisions of the Act other than Section 6(1) (c) were upheld. Section  6(1) (c) provided that Secretary to the Government of India could be  appointed as Chairman of the Tribunal.  It was directed that Section 6(1) (c)  be omitted from the statute. This observation of the Court was accepted and  Section 6(1)(c) of the Act was later on deleted from the statute. As to sub- section (a), (b), (bb) and (c) of Section 6(2) for the appointment of  Chairman/Vice-Chairman and other members from amongst the  administrative services it was observed (vide para 21) in the lead judgment  of the Ranganath Misra, J.:

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"â\200¦We do not want to say anything about Vice-Chairman  and members dealt with in sub-sections (2), (3) or (3-A)  because so far as their selection is concerned, we are of  the view that such selection when it is not 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.   Once the qualifications indicated for appointment of  Chairman are adopted and the manner of selection of  Vice-Chairman and members is followed, are inclined to  think that the manning of the Tribunal would be proper  and conducive to appropriate functioning.  We do not  propose to strike down the prescriptions containing  different requirements but would commend to, the  Central Government to take prompt steps to bring the  provisions in accord with what we have indicated.  We  must state that unless the same be done, the Constitution  of the Tribunal as a substitute of the High Court would be  open to challenge.  We hasten to add that our judgment  shall operate prospectively and would not affect  appointments already made to the offices of Vice- Chairman and member - both administrative and  judicial."

       Observations to the same effect were made by Bhagwati, CJ in his  separate but concurring judgment.  It was held that there should be no  preponderance of administrative members in the Tribunal and the Tribunal  should consist of one judicial member and one administrative member on  any bench.  That the presence of the administrative member would provide  input of practical experience in the functioning of the services.   The Bench  directed that the selection of Vice-Chairman and the other members from the  administrative services should be made by a high powered committee with a  sitting Judge of the Supreme Court to be nominated by the Chief Justice of  India which would ensure selection of proper and competent people to man  these high offices of trust and help to build up reputation and acceptability of  the Tribunal.   

The question as to whether the members of the administrative services  could be appointed as members of the Central Administrative Tribunal or  Vice-Chairman was answered in the affirmative.  Vires of Section  6(2)(a)(b)(bb) and (c) were upheld.   

This question was again considered in L. Chandra Kumar  Vs. Union  of India, 1997 SCC 261, by a Seven-Judge Constitution Bench.  In this case  as well an argument was raised that the appointment of Administrative  Members to Administrative Tribunals be stopped.  The Court observed that  it was difficult to accept such a contention since setting up of these Tribunals  is founded on the premise that specialist bodies comprising of both trained  administrators and those with judicial experience would by virtue of their  specialised knowledge be better equipped to dispense speedy and efficient  justice.  The Court held:  

"We are also required to address the issue of the  competence of those who man the Tribunals and the  question of who is to exercise administrative supervision  over them.  It has been urged that only those who have  had judicial experience should be appointed to such  Tribunals.  In the case of Administrative Tribunals, it has  been pointed out that the Administrative Members who

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have been appointed have little or no experience in  adjudicating such disputes; the Malimath Committee has  noted that at times IPS Officers have been appointed to  these Tribunals.  It is stated that in the short tenures that  these Administrative Members are on the Tribunal, they   are unable to attain enough experience in adjudication  and in cases where they do acquire the ability, it is  invariably on the eve of the expiry of their tenures.  For  these reasons, it has been urged that the appointment of  Administrative Members to Administrative Tribunals be  stopped.  We find it difficult to accept such a contention.   It must be remembered that the setting up of these   Tribunals is founded on the premise that specialist bodies  comprising both trained administrators and those with  judicial experience would, by virtue of their specialised  knowledge, be better equipped to dispense speedy and  efficient justice.  It was expected that a judicious mix of  Judicial members and those with grassroots experience  would best serve this purpose.  To hold that the Tribunal  should consist only of Judicial Members would attack the  primary basis of the theory pursuant to which they have  been constituted.  Since the Selection Committee is now  headed by a Judge of the Supreme Court, nominated by  the Chief Justice of India, we have reason to believe that  the Committee would take care to ensure that  Administrative Members are chosen from amongst those  who have some background to deal with such cases."              

       From the above observations, it is clear that this Court held that  it was not desirable to stop the appointment of members of administrative  services as administrative members to the Tribunal.  Rather the judicious  mix of Judicial Members and those with grassroot experience would serve  the purpose better for which the Tribunals were created.  Contention that  Tribunal should consist only of Judicial members was rejected and it was  held that such a direction would attack the primary basis of the theory  pursuant to which the Tribunals were constituted.   It was observed that a  Selection Committee which was headed by a sitting Judge of the Supreme  Court would ensure that Administrative Members would be chosen from  amongst those who had the requisite background to deal with the cases  coming up before the Tribunal.

In view of the observations of  this Court in S.P. Sampath and            L. Chandra Kumar cases (supra ) the High Court was not right in observing  that henceforth the appointment of Vice-Chairman should be made from  amongst the persons mentioned in of Section 6 (2) (a) of the Act alone.  The  findings recorded by the High Court run contrary to the law laid down by  this Court.   

For the reasons stated above, the Civil appeals are accepted, the  interim order dated 25th February, 2002 which merged with the final order  dated 9th April, 2002 passed by the High Court are set aside.  The stay  granted by the High Court is vacated.  The authorities would be at liberty to  make appointment as per selection made which would of course be subject  to the final result of the writ petition by the High Court.   Since the High Court did not decide the inter se dispute between writ  petitioner Shri Shambhu Dayal and Shri V.K. Majotra, respondent No. 5 in  the writ petition, we remit the case back to the High Court for decision in  accordance with law.  We would request the High Court to dispose of the  matter at an early date and if possible within four months from the date of  receipt/production of a certified copy of this judgment.  

Since we are not deciding the dispute on merits and remitting the case

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back to the High Court for appropriate decision we refrain to go into merits  of the dispute in writ petition No. 398 of 2002 and dismiss the same with  liberty to the petitioner to approach the High Court, if so advised.  

Shri D.C. Verma, Respondent No. 4 in the Writ Petition, is a Judicial  Member of the Tribunal.  Counsel for the parties are agreed that no relief has  been claimed in the writ petition against him and he be deleted from the  array of the parties. Accordingly the name of Shri D.C. Verma be deleted  from the array of the parties in the writ petition.  He is not required to appear  before the High Court henceafter. Appeals are allowed.  No costs.