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CASE NO.: Appeal (civil)  6663 of 2004

PETITIONER: Union of India & Ors.

RESPONDENT: Kali Dass Batish & Anr.

DATE OF JUDGMENT: 05/01/2006

BENCH: C.J.I. , B.N. Srikrishna & R.V. Raveendran

JUDGMENT: J U D G M E N T with Civil Appeal Nos. 7575-7576 of 2004

SRIKRISHNA, J.

       This group of appeals raises the following question for determination  of this Court: What is the scope of ’judicial review’ in an order for  appointment of a member of the Central Administrative  Tribunal made in consultation with the Chief Justice of  India?

       The Central Administrative Tribunal (hereinafter referred to as "the  CAT") is one of  the Tribunals constituted under Section 4 of the  Administrative Tribunals Act, 1985 (hereinafter referred to as "the Act")  with its jurisdiction determined by Section 14 of the Act. It exercises  jurisdiction, powers and authority exercisable immediately on and from the  appointed day by all courts other than the Supreme Court with regard to  service matters and disputes pertaining to service inter alia of Central  Government employees. It comprises ’Administrative Members’ and  ’Judicial Members’ as respectively defined in Section 3(a) and 3(i) of the  Act. Sub-sections (3) and (3A) of Section 6 of the Act prescribe the  qualifications respectively for appointment of ’Judicial Member’ and   ’Administrative Member’. The Department of Personnel and Training,  Government of India by Order dated 15.4.1991/ 23.4.1991 has laid down  detailed guidelines about the constitution and procedure to be adopted by the  Selection Committee for selection of Vice-Chairman and Members of the  CAT. In the case of selection of a Judicial Member, the Selection Committee  is required to be chaired by the nominee of the Chief Justice of India, who   shall be a sitting Judge of the Supreme Court of India and shall comprise the  following additional members: (i) Secretary, Ministry of Law and Justice  (Department of Legal Affairs); (ii) Secretary, Ministry of Personnel; and (iii)  Chairman of the CAT.

       Seven vacancies of Judicial Members and three vacancies of  Administrative Members of the CAT arose during the period 1.7.2001 to  31.12.2001. Nominations were invited for these vacancies from different  authorities.

       First and Second Respondents in C.A. No. 6663/2004, namely, K.D.  Batish and Ram Kishore Prasad, respectively, were amongst the candidates   for selection to the post of Judicial Member in the CAT. The Selection  Committee met under the Chairmanship of Hon’ble Mr. Justice G.B. Patnaik  (as he then was) on 18.7.2001 and considered the names of 121 persons for  selection to the aforesaid vacancies. First and Second Respondents were also  among those considered for selection. The Selection Committee  recommended the names of seven persons for appointment as Judicial  Members and three persons for appointment as Administrative Members in

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the main list and an equal number of persons in the waiting list. The  candidates whose names appeared in the waiting list were to be appointed in  case any of the persons named in the main list were not appointed for any  reason. The names of First Respondent-K.D. Batish and  Second  Respondent- Ram Kishore Prasad were at Sl. Nos. 1 and 6, respectively, of  the main list. It is the established procedure that where members of the Bar  are considered for such important judicial posts, their antecedents are  required to be verified through the Intelligence Bureau (hereinafter referred  to as "the IB") and a report obtained from the IB. Accordingly, the names of  all such recommended persons were sent to the IB. After obtaining the report  from the IB, the Director (AT), Ministry of Personnel, Public Grievances  and Pensions made a noting on the file on 25.10.2001 in which he noted in  respect of First Respondent as under: "(i) In legal circles, he is considered to  be an advocate of average caliber. (ii) It is learnt that though he was allotted  to the Court of Justice R.L. Khurana, the learned Judge was not happy with  his presentation of  cases and asked the Advocate General to shift him to  some other court, which was done. (iii) He was a contender for the Shimla  AC seat on BJP ticket in 1982 and 1985. When he did not get the ticket, he  worked against the party and was expelled from the party in 1985. He was  subsequently reinducted by the party in 1989." The Director (AT) was,  however, of the view that since the candidate had been recommended by the  Selection Committee headed by a Judge of the Supreme Court, the benefit of  doubt had to be given to him and the dissatisfaction of Justice Khurana with  his performance must be treated as counterbalanced by the recommendation  of the Selection Committee headed by the Sitting Judge of the Supreme  Court.

        On 29.10.2001 the Joint Secretary (AT & A), Ministry of Personnel  and Training made a noting to the following effect: "(i) Shri Batish has  strong political affiliations and was a contender for the Shimla AC seat in  1982 and 1985 from BJP; (ii) He appears to be of average caliber and Justice  Khurana of the Himachal Pradesh High Court seems to have asked the  Advocate General to shift him to some other Court; and (iii) There is nothing  adverse against his character or integrity."

       On 30.10.2001 the Secretary (P) made a noting on the file that Shri  Batish need not be appointed since his performance was so poor that he was  shifted to another Court. On 31.10.2001 the Minister of State made a noting  and directed that the IB Report along with the department recommendations  be sent to the Chief Justice of India. Accordingly, the Secretary (Personnel)  vide Confidential Memorandum dated 6.11.2001 forwarded all necessary  papers including the IB Report and sought the concurrence of the Chief  Justice of India with regard to the names recommended by the Central  Government.

       On 12.11.2001 the Chief Justice of India concurred with the proposal  submitted to him vide Confidential Memorandum dated 6.11.2001. On  14.1.2002 the appointments of the selected candidates were notified, but the  First and Second Respondents were not appointed.

       On 30.6.2003 the Second Respondent-Ram Kishore Prasad filed a  Writ Petition No. 3098/2003 before the Jharkhand High Court challenging  the action of the Central Government in not appointing him as a Judicial  Member of the CAT and sought a direction to the Central Government to  appoint him on the ground of his being included in the select list. On  23.9.2003 the High Court of Jharkhand at Ranchi dismissed the writ petitiion  filed by the Second Respondent inter alia holding that mere inclusion of the  name of a candidate in the select list gave him no right to be appointed, that  in the case of appointment to a judicial post like the CAT it was not only the  right, but also the duty, of the appointing authority to verify the antecedents  of the candidate on the basis of the report and inputs from the IB, that it was  open to the appointing authority not to appoint any person whose name had  been included in the list prepared by the Selection Committee, that in  excluding the petitioner-Second Respondent, on the basis of IB report  received, which was made available to the Chief Justice of India, and whose

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concurrence to the proposal was obtained by the Government of India after  apprising the Chief Justice of India of all the relevant facts, left no scope for  judicial review, and that there was no case of mala fides worth considering.  In this view of the matter, the writ petition was found to be without merit  and dismissed. The Second Respondent took out an application Civil Review  No. 119/2003 for review of the aforesaid judgment, which came to be  dismissed by the order of the Jharkhand High Court made on 11.8.2004.  Being aggrieved by the aforesaid judgments, the Second Respondent has  filed Civil Appeal Nos. 7575-7576/2004 in this Court.

       The First Respondent-K.D. Batish filed a Writ Petition No. 812/2003  before the High Court of Himachal Pradesh at Shimla impugning the  decision of the Central Government not to appoint him as a Judicial Member  of the CAT and seeking a mandamus for his appointment.Though the said  writ petition was contested by the Union of India, the High Court by its  judgment dated 25.5.2004 allowed the writ petition and directed the  respondents to the writ petition (Union of India and the appointing authority)  to reconsider afresh, as a special case, the petitioner-K.D. Batish for his  appointment as a Judicial Member of the CAT, based on his selection by the  Selection Committee.         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 the  writ petition before the Himachal Pradesh High Court and therefore appears  to have been made a Respondent in this case also.           The learned Solicitor General made a frontal attack on the judgment  of the High Court of Himachal Pradesh contending that the High Court has  far exceeded its powers of judicial review and grievously erred in interfering  with the decision of the Union of India and the appointing authority not to  appoint the First and Second Respondents to the posts of Judicial 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".          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.

       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 must be remembered that, the  CAT is a Tribunal constituted under Article 323A of the Constitution and is  expected to have the same jurisdiction as that of a High Court.  Consequently, Parliament has taken great care to enact, vide Sections 6 and  7 of the Act, that no appointment of a person possessing the qualifications  prescribed in the Act as a Member shall be made, except after consultation  with the Chief Justice of India. The consultation with the Chief Justice of  India is neither a routine matter, nor an idle formality. It must be  remembered that, a member of an Administrative Tribunal like the CAT  exercises vast judicial powers, and such member must be ensured  absolute  judicial independence, 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

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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 record as a Constable, the view taken by the  appointing authority could not be said to be unwarranted, nor could it be  interdicted in judicial review. These are observations made in the case of a  Constable, they would apply  with greater vigour in the case of appointment  of a Judicial Member of the CAT. It is for this precise reason, that sub- section (7) to Section 6 of the Act requires that, the appointment of a  Member of the CAT cannot be made "except after consultation with the  Chief Justice 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.

       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 also over the decision taken  by the Chief Justice of India, which it discarded by a side wind. In our view,   the High Court seriously erred in doing so. Even assuming that the Secretary  of the concerned department of the Government of India had not apprised  himself of all necessary facts, one cannot assume or impute to a high  constitutional authority, like the Chief Justice of India, such procedural or  substantive error. The argument made at the Bar that the Chief Justice of  India might not have been supplied with the necessary inputs has no merit. If  Parliament has reposed faith in the Chief Justice of India as the paterfamilias  of the judicial hierarchy in this Country, it is not open for anyone 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.

       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.  

       In Punjab State Electricity Board and Ors.  v.  Malkiat Singh ,  this Court reiterated the observations of the Constitution Bench of this Court  in Shankarsan Dash  v.  Union of India  as under: "7. It is not correct to say that if a number of vacancies  are notified for appointment and adequate number of  candidates are found fit, the successful candidates  acquire an indefeasible right to be appointed which  cannot be legitimately denied. Ordinarily the notification

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merely amounts to an invitation to qualified candidates to  apply for recruitment and on their selection they do not  acquire any right to the post. Unless the relevant  recruitment rules so indicate, the State is under no legal  duty to fill up all or any of the vacancies. However, it  does not mean that the State has the licence of acting in  an arbitrary manner. The decision not to fill up the  vacancies has to be taken bona fide for appropriate  reasons. And if the vacancies or any of them are filled up,  the State is bound to respect the comparative merit of the  candidates, as reflected at the recruitment test, and no  discrimination can be permitted. This correct position has  been consistently followed by this Court, and we do not  find any discordant note in the decisions in State of  Haryana v. Subhash Chander Marwaha , Neelima  Shangla v. State of Haryana  or Jatinder Kumar v.  State of Punjab ."                          (emphasis supplied)

This, in our view, is the correct approach to be adopted in dealing with a  matter of this nature.

       In K. Ashok Reddy  v.  Government of India and Ors.  this Court  indicated that however wide the power of judicial review under Articles 226  or 32 there is a recognised limit, albeit self-recognised, to the exercise of  such power. This Court reiterated a passage from Craig’s Administrative  Law (Second Edn., p. 291)., vide Paragraph 21, as under: "The traditional position was that the courts would  control the existence and extent of prerogative power, but  not the manner of exercise thereof. .... The traditional  position has however now been modified by the decision  in the GCHQ case. Their Lordships emphasised that the  reviewability of discretionary power should be dependent  upon the subject-matter thereof, and not whether its  source was statute or the prerogative. Certain exercises of  prerogative power would, because of their subject-matter,  be less justiciable, with Lord Roskill compiling the  broadest list of such forbidden territory ...."  

The observations of Lord Roskill, referred to above are from Council of  Civil Service Unions  v.  Minister for the Civil Service  (GCHQ case) as  under: "But I do not think that that right of challenge can be  unqualified. It must, I think, depend upon the subject- matter of the prerogative power which is exercised. Many  examples were given during the argument of prerogative  powers which as at present advised I do not think could  properly be made the subject of judicial review.  Prerogative powers such as those relating to the making  of treaties, the defence of the realm, the prerogative of  mercy, the grant of honours, the dissolution of Parliament  and the appointment of ministers as well as others are  not, I think, susceptible to judicial review because their  nature and subject-matter are such as not to be amenable  to the judicial process."  

       Finally, this Court emphasised  judicial restraint by citing with  approval a passage in De Smith’s Judicial Review of Administrative Action,  (vide Paragraph 23) as under: "Judicial self-restraint was still more marked in cases  where attempts were made to impugn the exercise of  discretionary powers by alleging abuse of the discretion  itself rather than alleging non-existence of the state of  affairs on which the validity of its exercise was  predicated. Quite properly, the courts were slow to read  implied limitations into grants of wide discretionary

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powers which might have to be exercised on the basis of  broad considerations of national policy."  

Based on this reasoning, it was acknowledged that the transfer of a Judge of  the High Court based on the recommendation of the Chief Justice of India  would be immune from judicial review as there is "an inbuilt check against  arbitrariness and bias indicating absence of need for judicial review on those  grounds. This is how the area of justiciability is reduced   \005. "

       We, respectfully, reiterate these observations, and expect them to be  kept in mind by all courts in this Country invested with the power of judicial  review.

       The respondents have relied on the judgments of this Court in R.S.  Mittal  v.  Union of India  in support of their contentions. In our view, the  said authority hardly advances their case. In the first place, all that the  authority says is that where a Selection Board headed by a sitting Judge of  the Supreme Court had recommended certain candidates for appointment as  Members of the ITAT, it was not open to the Government of India to sit on  the said recommendation without taking action. That was not a case where a  decision taken not to appoint a candidate for good reason was concurred in  by the Chief Justice of India.  

       The judgment in Dr. A.K. Doshi  v.  Union of India   on which the  respondents relied is also of no consequence. That was also not a case of  concurrence of the Chief Justice of India and, in any event, this Court had  found a certain amount of mala fides on the part of the Secretary of the  Department concerned.

       The Second Respondent-Ram Kishore Prasad, who argued his own  case adopted the arguments of the First Respondent. In addition, he  submitted lengthy written arguments and contended that his name was  deleted with mala fide intention for illegally favouring one J.K. Kaushik,  who was down below in the merit list. Apart from the bald allegation, there  is no material, whatsoever, presented before the High Court in support of  this mala fide intention, nor did the High Court accept the case.  

       We have carefully perused the written arguments filed by the Second  Respondent. Reliance on the judgment in Sarwan Singh Lamba and Ors.   v.  Union of India and Ors.  helps in no way. Sarwan Singh (supra) is not  an authority which militates against the view we are inclined to take. On the  other hand, even this judgment suggests that where the candidates were duly  qualified and eligible for the posts against which they were appointed, and  all of them had been appointed after consultation with the Chief Justice of  India, there was no violation of any law or procdure in their appointments.

       We consider it unnecessary to refer in detail to a number of authorities  on which the Second Respondent has relied for, in our view, they are not  relevant.

       In the result, we are of the view that the impugned judgment of the  High Court of Himachal Pradesh is erroneous and needs to be set aside,  while the judgment and order of the High Court of Jharkhand are right and  in consonance with the position in law and need to be upheld. Hence, we  dismiss Civil Appeal Nos. 7575-7576/2004 directed against the judgment  and order of the High Court of Jharkhand.          We allow the appeal of the Union of India in Civil Appeal No.  6663/2004 and set aside the impugned judgment of the High Court of  Himachal Pradesh in Writ Petition No.812/2003.

       There shall be no order as to costs.