High Court Kerala High Court

James K.Joseph vs Government Of India on 18 February, 2009

Kerala High Court
James K.Joseph vs Government Of India on 18 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 16915 of 2005(L)


1. JAMES K.JOSEPH,
                      ...  Petitioner

                        Vs



1. GOVERNMENT OF INDIA,
                       ...       Respondent

                For Petitioner  :SRI.P.A.AHAMMED

                For Respondent  :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR

The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :18/02/2009

 O R D E R
                                                                C.R.

                              P.N.Ravindran, J.
                          ==================
                        W.P.(C) No.16915 of 2005
                       =====================

               Dated this the 18th day of February, 2009.

                                JUDGMENT

In this Writ Petition, the petitioner seeks a writ in the nature of

mandamus commanding the first respondent to appoint him as

Administrative Member in the Central Administrative Tribunal, Ernakulam

Bench. The brief facts of the case are as follows:

2. The petitioner was a member of the Indian Audit and Accounts

Service. During the period from 1988 to 1995 he was the Accountant

General for the State of Maharashtra, the State of Tamil Nadu and the

State of Kerala. Later, during the period 1995-1996 he was Joint

Secretary in the Ministry of Personnel of the Government of India. While

the petitioner was holding office as Joint Secretary (Establishment) in the

Ministry of Personnel of the Government of India, he took voluntary

retirement from service. Thereafter, he had also served as the Managing

Director of the Kerala State Industrial Development Corporation and the

Kerala State Road Transport Corporation.

3. Three vacancies of Administrative Member in the Central

Administrative Tribunal (hereinafter referred to as the CAT for short)

WP(C) 16915/05 -: 2 :-

arose during the period from 1.1.2004 to 30.6.2004. The Government of

India notified the vacancies and invited applications from eligible

candidates. The petitioner applied for appointment as Administrative

Member in the CAT by submitting Ext.P1 application dated 23.8.2004 to

the Joint Secretary (Administration), Ministry of Personnel, Government of

India. The petitioner states that the post of Accountant General is a post

equated to the post of Joint Secretary to Government of India and that

only civil servants, who are consistent and outstanding in their

performance are posted as Joint Secretary to Government of India.

According to him, he had 8 years of experience in the category of Joint

Secretary and was therefore eligible and qualified to be appointed as

Administrative Member in the CAT.

4. The Selection Committee constituted by the Government of

India in terms of Order No.A-1013/54/90-At dated 15.4.1991 and

23.4.1991 considered the applications received from various candidates

and recommended the names of the petitioner and Sri.N.Ramakrishnan,

IAS for appointment as Administrative Members in the CAT.

Sri.N.Ramakrishnan, IAS was appointed as Administrative Member in the

CAT, Ernakulam Bench. Since the petitioner was not appointed, he filed

this Writ Petition on 6.6.2005, joining the Government of India

represented by the Secretary, Ministry of Personnel as the sole

respondent, contending that as the Selection Committee has

recommended his name, the action of the Government of India in

WP(C) 16915/05 -: 3 :-

denying appointment to him is arbitrary and discriminatory and violative

of the fundamental rights guaranteed to him under Articles 14 and 16 of

the Constitution of India. He has further contended that two vacancies

of Administrative Members existed in the CAT, Ernakulam Bench, that

Sri.N.Ramakrishnan IAS, one among the two persons recommended by

the Selection Committee for appointment against the said vacancies was

appointed and that as per the norms, the Government of India is bound

to appoint him as Administrative Member in the CAT, Ernakulam Bench.

The petitioner has in the Writ Petition placed reliance on the decision of

the High Court of Himachal Pradesh in Kali Das Batish v. Union of India

& others – 2005(1) SLR 412 and the decisions of the Apex Court in

Maneka Gandhi v. Union of India – AIR 1978 S.C. 597, E.P. Royappa v.

State of Tamil Nadu – 1974 (1) SLR 497 SC and Ramana Dayaram Shetty

v. The International Airport Authority of India – AIR 1979 S.C. 1628

relied on by the High Court of Himachal Pradesh in support of his

contentions. In the Writ Petition as filed, the petitioner had prayed for a

writ in the nature of mandamus commanding the Government of India to

appoint him as Administrative Member in the CAT, Ernakulam Bench.

After the Writ Petition was filed, Smt.Sathi Nair, the additional second

respondent in the Writ Petition was appointed as Vice Chairman of the

CAT by Ext.R2(a) order dated 22.10.2003 and posted in the Chennai

Bench. Later, by Ext.R2(b) order dated 3.6.2005, she was transferred to

the Ernakulam Bench. The petitioner thereupon filed I.A.No.93 of 2006

WP(C) 16915/05 -: 4 :-

to implead her as the additional second respondent in the Writ Petition

and I.A.No.2831 of 2006 to amend the Writ Petition by incorporating a

prayer to quash the appointment of the additional second respondent as

Administrative Member of the CAT, Ernakulam Bench. Both the

applications have been allowed.

5. The first respondent has filed a counter affidavit denying and

disputing petitioner’s averment that the Selection Committee had

recommended him along with Sri.N.Ramakrishnan, IAS for appointment

as Administrative Member in the CAT, Ernakulam Bench. The first

respondent has also raised a contention that the Writ Petition is based on

surmises and conjectures and that the allegations in the Writ Petition are

baseless and are not tenable. It is also stated that the Union of India has

filed an appeal before the Apex Court, challenging the correctness of the

decision of the High Court of Himachal Pradesh in Kali Das Batish v.

Union of India & others – 2005(1) SLR 412, that the judgment of the

High Court of Himachal Pradesh has been stayed by the Apex Court and

that a final verdict in the matter is awaited.

6. The petitioner has filed a reply affidavit dated 3.7.2005 and an

additional reply affidavit dated 16.7.2008. In the reply affidavit dated

3.7.2005, the petitioner has stated that he had applied to the Central

Public Information Officer (Administrative Tribunal) to disclose the reason

for which he was denied appointment, that in Ext.P4 letter dated

22.11.2005 the Central Public Information Officer (Administrative

WP(C) 16915/05 -: 5 :-

Tribunal) informed him that the Selection Committee had not finally

recommended him for appointment as Administrative Member in the

CAT, that as the answer contained in Ext.P4 was vague, he had sent

Ext.P5 letter dated 23.8.2006 to the Central Public Information Officer

(Administrative Tribunal) requesting him to give the specific reason for

denying him appointment, that in Ext.P6 reply dated 8.9.2006, the

Central Public Information Officer (Administrative Tribunal) informed him

that he was initially recommended by the Selection Committee for

appointment as Administrative Member, that after receipt of the

verification report on his character and antecedents, the matter was

resubmitted for consideration by the Selection Committee and that as

the report was adverse to him, the Selection Committee withdrew their

earlier recommendation to appoint him and that the recommendation of

the Selection Committee to withdraw their earlier recommendation to

appoint him as Administrative Member was concurred with by the

Honourable the Chief Justice of India and approved by the appointing

authority. The petitioner has further stated in the reply affidavit dated

3.7.2005 that though he had submitted Ext.P7 appeal against Ext.P6, it

was turned down by Ext.P8, that he thereupon submitted Ext.P9 appeal

to the Central Information Commission and that till date, the appeal has

not been disposed of or the information sought made available to him

under the Right to Information Act, 2005.

7. In the additional reply affidavit dated 16.7.2008, the petitioner

WP(C) 16915/05 -: 6 :-

has averred that though the report of the Intelligence Bureau was not

furnished to him, it was furnished to Sri. Ram Kishore Prasad, an

Advocate practising in the High Court of Jharkhand who was also denied

appointment as Judicial Member of the CAT. A copy of the letter sent by

the Central Public Information Officer (Administrative Tribunal) to Sri.Ram

Kishore Prasad together with the relevant portions of the files is

produced and marked as Ext.P10. In Ext.P10, it is stated that while the

petitioner was the Accountant General of Kerala, he had to face an

enquiry in connection with the recruitment of contingency staff from

among the relatives of Class IV staff in the office of the Accountant

General and that as the report of enquiry was not favourable to him, he

proceeded on voluntary retirement. The petitioner submits that there is

no truth in the allegations levelled against him in Ext.P10 and that the

report submitted by the Intelligence Bureau was false. He relies on

Ext.P13 letter dated 26.6.2008 sent by the Central Public Information

Officer in the Office of the Comptroller & Auditor General of India to

contend that no enquiry whatsoever was held in connection with the

recruitment of contingency staff in the office of the Accountant General

of Kerala and that the report submitted by the Intelligence Bureau was

one engineered by Sri.K.J.Alphonse, IAS, with whom he was not on good

terms. The petitioner also submits that as the Managing Trustee of

Resurgent Educational and Charitable Trust he had sacked its Director

Sri.K.J.Roy, brother of Sri.K.J.Alphonse, IAS for indulging in corrupt

WP(C) 16915/05 -: 7 :-

practices and that it infuriated and prompted Sri.K.J.Alphonse to

engineer the submission of a false report by the Intelligence Bureau.

8. I have heard Sri.S.Kalyanam, the learned Senior Advocate

appearing for the petitioner, Sri.P.Parameswaran Nair, the learned

Assistant Solicitor General of India appearing for the first respondent and

Sri.S.Radhakrishnan Nair, the learned counsel appearing for the

additional second respondent. The learned Senior Advocate appearing

for the petitioner, relying on Ext.P13 letter submitted that the

information which led to the petitioner’s disqualification, is not correct

and that the Intelligence Bureau had at the instigation of

Sri.K.J.Alphonse, IAS, filed a false report as regards the petitioner’s

character and antecedents on extraneous considerations and without

verifying the facts, solely with a view to deny him appointment as

Administrative Member in the CAT. The learned Senior Advocate

appearing for the petitioner contended that as it is now evident that the

note submitted by the Joint Secretary did not reflect the true state of

affairs and as Ext.P13 proves that there was no enquiry against the

petitioner as reported by the Intelligence Bureau, the Government of

India is bound to reconsider its earlier decision and to appoint the

petitioner as Administrative Member of the CAT. The learned Senior

Advocate contended that it was at the intervention of Sri.K.J.Alphonse,

IAS, who is named in Ext.P10 itself that a false report about the character

and antecedents of the petitioner was submitted by the Intelligence

WP(C) 16915/05 -: 8 :-

Bureau and that as no enquiry as reported by the Intelligence Bureau was

ever held against the petitioner, the injustice meted out to the petitioner

has to be remedied by this Court. He contended that as the decision

taken by the first respondent not to appoint the petitioner was prompted

by a mistaken belief as regards the existence of a non-existing fact or

circumstance, the decision is unreasonable and that such a decision

which is based on reasons of fact which did not exist has therefore to be

held to be an abuse of power. The learned Senior Advocate appearing

for the petitioner, relying on the decisions of the Apex Court in State of

Madhya Pradesh and another v. Bhailal Bhai and others – A.I.R. 1964

S.C. 1006, S.R. Venkataraman v. Union of India and another – A.I.R.

1979 S.C. 49, R.S.Mittal v. Union of India – 1995 Supp (2) S.C.C. 230 and

Dr.A.K. Doshi v. Union of India – (2001) 4 S.C.C. 43 contended that as

the petitioner has demonstrated that the report submitted by the

Intelligence Bureau was based on a non-existing fact, the decision taken

by the first respondent not to appoint him, is liable to be set aside and

the petitioner is entitled to be appointed.

9. Per contra, the learned Assistant Solicitor General appearing the

first respondent contended that as the Selection Committee chaired by a

Sitting Judge of the Honourable the Supreme Court of India had

withdrawn their earlier recommendation to appoint the petitioner and as

the Honourable the Chief Justice of India had concurred with the decision

of the Selection Committee and the appointing authority had accepted it,

WP(C) 16915/05 -: 9 :-

the petitioner cannot challenge his non-selection and seek a writ in the

nature of mandamus commanding the Government of India to appoint

him as Administrative Member in the CAT. He also relied on the decision

of the Apex Court in Union of India & others v. Kali Das Batish and

another – A.I.R. 2006 S.C. 789 to contend that the decision taken by the

Selection Committee to withdraw their earlier recommendation and the

decision taken by the appointing authority not to appoint the petitioner

are not justiciable and that this Court cannot therefore exercise the

power of judicial review and issue a writ in the nature of mandamus

commanding the first respondent to appoint the petitioner as

Administrative Member in the CAT. The learned counsel appearing for

the additional second respondent submitted that the second respondent

has ceased to hold office and that the relief prayed for against the

second respondent has become infructuous by efflux of time.

10. I have considered the submissions made at the Bar by the

learned counsel appearing on either side. Shorn off details, the

petitioner’s contention is that the Selection Committee which had initially

recommended him for appointment as Administrative Member in the CAT

withdrew their recommendation on the basis of a false report filed by the

Intelligence Bureau which was furnished to them by the Joint Secretary

(AT) along with Ext.P10 note and therefore the petitioner is entitled to be

appointed as Administrative Member in the CAT. Since the controversy

centres round the correctness of the statements in Ext.P10, the relevant

WP(C) 16915/05 -: 10 :-

portions thereof are extracted below:

“Joint Secretary (AT)

In its meeting held on 11.10.04, the Selection

Committee for Vice-Chairman/Members of the Central

Administrative Tribunal, recommended three persons for

appointment as Administrative Member and three persons

for appointment as Judicial Member. The Committee also

recommended one candidate to be placed on the Waiting

List for Administrative Member and one candidate to be

placed on the Waiting List for Judicial Member.

2. After seeking approval of MOS (PP) and concurrence

of the Chief Justice of India, proposals for the appointment

of three Judicial Members and one Waiting List Judicial

Member and for the appointment of two Administrative

Members and one Waiting List Administrative Member have

been forwarded to the ACC. One case of Administrative

Member has been under process because a reference was

made to the Intelligence Bureau.

3. The IB inquiry process is normally used only in the

cases of Members of the Bar who are being considered for

posting as Judicial Members. Such IB inquiry is not asked

for in the cases of Administrative Members, or of officers

of the Judicial Services being considered for Judicial

Member because all such persons would have a service

record, ACRs etc. The case of Shri James K.Joseph, IA & AS

(Retd) was however referred to the IB because Shri. Joseph

had taken voluntary retirement from service in May, 1996.

WP(C) 16915/05 -: 11 :-

Given the long period that elapsed from his retirement and

the absence of vigilance status, ACR dossier, etc. orders of

MOS (PP) were obtained in 18.10.04 and the case referred

to IB.

4. The IB’s comments have been received in note of

17.12.04. The report makes mixed reading. There are

references to Shri Joseph’s association with the BJP, though

having retired from Government service, Shri James K.

Joseph is free to take part in political activities. There is

also a reference to an ongoing feud between him and

Shri.K.J.Alphonse, IAS, on a matter related to the Resurgent

Kerala Educational and Charitable Trust, Trivandrum. It

should be noted that we have independently received

various documents from Shri K.J. Alphonse related to the

same matter. It should also be noted that while the

complaints against Shri.James K.Joseph are serious, Shri.

K.J. Alphonse himself is highly controversial and no

judgment can be passed in the matter without a better

knowledge of the facts.

5. There is yet another issue mentioned in the IB report

which is probably more serious. It is stated that during his

posting as Accountant General, Kerala, Shri. Joseph had

faced an inquiry in connection with recruitment of some

contingency staff from amongst relatives of Class IV staff of

the AG Office. The IB report clearly states that the inquiry

report in the matter was unfavourable and that Shri.Joseph

had consequently proceeded on voluntary retirement.

6. In my view, this is a fairly serious complaint. We do

WP(C) 16915/05 -: 12 :-

not have details of inquiry report with us, but I do not also

think it is worthwhile to make inquiries from the AG’s office

at this stage. Given the information revealed by the IB

report, it seems fairly clear that Shri.James K. Joseph’s

general reputation is somewhat controversial. In the

circumstances, it is recommended that we do not accept

the recommendation of the Selection Committee. It should

be made clear that the facts brought out by IB were not

brought to the attention of the Selection Committee which

had before it only a simple CV of Shri. James K. Joseph.

7. We may accordingly seek orders of MOS(PP) to

reject the recommendation of the Selection Committee.

Since the proposal to appoint the two other Admn. Member

and a Waiting List candidate is already in ACC, there should

be no difficulty about filling the vacancy with the Waiting

List candidate.”

11. The pleadings and the materials on record disclose that the

Selection Committee that met on 11.10.2004 had recommended the

name of the petitioner for appointment as Administrative Member of the

CAT, that as the petitioner had retired from service in May, 1996 his case

was referred to the intelligence Bureau for verification of character and

antecedents and that the Intelligence Bureau had in its note dated

17.12.2004 reported that while the petitioner was the Accountant

General of Kerala, he had faced an enquiry in connection with the

recruitment of contingency staff from amongst the relatives of Class IV

WP(C) 16915/05 -: 13 :-

staff of the Accountant General’s office, that the report of enquiry was

unfavourable to the petitioner and consequently he proceeded on

voluntary retirement. After the report of the Intelligence Bureau was

received, the Joint Secretary (AT) prepared the note evidenced by Ext.P10

which I have extracted above on 24.12.2004. Thereafter, as can be seen

from Ext.P6, the file was placed before the Selection Committee as

directed by the Honourable the Chief Justice of India and in view of the

report submitted by the Intelligence Bureau, the Selection Committee

withdrew their earlier recommendation to appoint the petitioner as

Administrative Member of the CAT. Ext.P6 also discloses that the

recommendation of the Selection Committee to withdraw their earlier

recommendation to appoint the petitioner as Administrative Member in

the CAT, was concurred with by the Honourable the Chief Justice of India

and approved by the appointing authority. It is in this background that

this Court has to consider whether the petitioner is entitled to seek a

writ in the nature of mandamus commanding the first respondent to

appoint him as Administrative Member in the CAT.

12. I shall now refer to the decisions of the Apex Court relied on

by the learned Senior Advocate appearing for the petitioner. In State of

Madhya Pradesh and another v. Bhailal Bhai and others (supra) a

Constitution Bench of the Apex Court considered the question whether

the High Court has power under Article 226 of the Constitution to order

refund of tax which was illegally collected. It was held that if a right has

WP(C) 16915/05 -: 14 :-

been infringed – whether fundamental right or statutory right – and the

aggrieved party comes to the court for enforcement of the right, it will

not be giving complete relief if the court merely declares the existence of

such right or the fact that the existing right has been infringed. The

Apex Court also held that where there has been only a threat to infringe

the right, an order commanding the Government or other statutory

authority not to take the action contemplated would be sufficient and

that where the right has been actually invaded, the High Courts have the

power to give consequential reliefs for the purpose of enforcement of

fundamental rights and statutory rights. In S.R.Venkataraman v. Union

of India and another (supra), the Apex Court was dealing with the case

of a public servant ordered to be retired prematurely in public interest.

Taking note of the admitted fact that there was nothing on record which

would justify an order prematurely retiring the appellant from service,

the Apex Court held that when a public body is prompted by a mistaken

belief in the existence of a non-existing fact or circumstance, there would

be an error of fact and that what is done under a mistaken belief, might

almost be said to have been done in bad faith. It was held that an

administrative order which is based on reasons of fact which do not exist

must therefore be held to be infected with an abuse of power.

13. In R.S. Mittal v. Union of India (supra), the Apex Court while

considering the question whether the Appointments Committee of the

Cabinet was entitled to deviate from the recommendation made by the

WP(C) 16915/05 -: 15 :-

Selection Board, held that though a person on the select panel has no

vested right to be appointed to the post for which he has been selected,

the appointing authority cannot ignore the select panel or act on its

whims. It was held that when a person has been selected by the

Selection Board and there is a vacancy which can be offered to him,

keeping in view his merit position, then there is no justification to ignore

him for appointment and that there has to be a justifiable reason to

decline to appoint a person, who is on the select panel. On the facts of

the case, the Apex Court held that no reason whatsoever, not to talk of a

justifiable reason has been given as to why the appointments were not

offered to the candidates recommended by the Selection Board and

accordingly directed the recommendations of the Selection Board to be

placed before the Appointments Committee of the Cabinet. In

Dr.A.K.Doshi v. Union of India (supra), the Apex Court considered the

question whether it was open to the Appointments Committee of the

Cabinet to rely on materials which had not been placed before the

Selection Committee to deny appointments to candidates recommended

by the Selection Committee. The Apex Court held that after the Selection

Committee which makes the selection recommends one or more names

for appointment, the recommendation along with the materials

considered by the Selection Committee should be placed before the

Appointments Committee without further addition or alteration and that

if in an exceptional case the Appointments Committee feels that certain

WP(C) 16915/05 -: 16 :-

material which was not available to be considered by the Selection

Committee has come into existence in the meantime and the material is

relevant for the purpose of appointment, then the matter should be

placed before the Appointments Committee with the additional material

for its consideration. The Apex Court held that the action of the

Appointments Committee in not appointing candidates recommended by

the Selection Committee and in appointing a person in the reserve panel,

amounted to interference with the process of selection and that the

Appointments Committee has attempted to set at naught the selection.

14. An issue similar to the one involved in the case on hand arose

before the Apex Court in Union of India and others v. Kali Das Batish

and another (supra), referred to and relied on by the learned Assistant

Solicitor General appearing for the first respondent. The Government of

India had invited applications to fill up 7 vacancies of Judicial Members

and 3 vacancies of Administrative Members in the CAT for the period

from 1.7.2001 to 31.12.2001. Sri.Kali Das Batish and Sri.Ram Kishore

Prasad, two practicing Advocates applied for appointment as Judicial

Members in the CAT. The Selection Committee chaired by a Sitting Judge

of the Apex Court that met on 18.7.2001, considered the names of 121

persons for selection to the aforesaid vacancies and recommended the

names of 7 persons including Sri.Kali Das Batish and Sri.Ram Kishore

Prasad for appointment as Judicial Members of the CAT. In accordance

WP(C) 16915/05 -: 17 :-

with the established procedure, their antecedents were got verified

through the Intelligence Bureau. The report of the Intelligence Bureau

was not favourable to Sri.Kali Das Batish and Sri.Ram Kishore Prasad and

therefore the Government of India decided that it would not be desirable

to appoint them as Judicial Members of the CAT. The Government also

proposed to appoint two among the candidates in the waiting list in the

place of Sri.Kali Das Batish and Sri.Ram Kishore Prasad. The concurrence

of the Honourable the Chief Justice of India was thereupon sought. The

Honourable the Chief Justice of India concurred with the proposal of the

Government of India and therefore, Sri.Kali Das Batish and Sri.Ram

Kishore Prasad were not appointed.

15. Sri.Ram Kishore Prasad thereupon filed a Writ Petition in the

High Court of Jharkhand challenging the action of the Union of India in

not appointing him as Judicial Member and also sought a direction to

the Central Government to appoint him as he was included in the select

list. The High Court of Jharkhand held that the mere inclusion of the

name of a candidate in the select list does not confer on him a right to

be appointed to the post and that in the matter of appointment to a

Judicial post, the appointing authority had not only the right, but also a

duty to verify the character and antecedents of the candidates on the

basis of the report and inputs from the Intelligence Bureau and that it

was open to the appointing authority not to appoint any person included

in the list prepared by the Selection Committee. The High Court of

WP(C) 16915/05 -: 18 :-

Jharkhand also held that exclusion of the name of Sri.Ram Kishore Prasad

on the basis of the report of the Intelligence Bureau, which was made

available to the Honourable the Chief Justice of India and whose

concurrence to the proposal was obtained by the Government of India

after apprising the Honourable the Chief Justice of India of all the

relevant facts, left no scope for judicial review. The Writ Petition was

accordingly dismissed. Though Sri.Ram Kishore Prasad attempted to seek

a review of the judgment, the review petition was also dismissed. He

thereupon moved the Apex Court in appeal.

16. Sri.Kali Das Batish had also likewise filed a Writ Petition in the

High Court of Himachal Pradesh. The High Court of Himachal Pradesh

proceeded to examine the correctness of the report submitted by the

Intelligence Bureau and held that the report submitted by the Intelligence

Bureau as regards his performance as a Lawyer, was without substance.

The High Court of Himachal Pradesh held that as the ground on which

the petitioner was denied appointment has been proved to be non-est, he

is entitled to have his case considered afresh without reference to the

report submitted by the Intelligence Bureau. The Writ Petition was

accordingly allowed and the Government of India was directed to

consider his case afresh and to appoint him against vacancies if any

available or against the next arising vacancy [vide Kali Das Batish v.

Union of India and others – 2005(1) SLR 412.] The Union of India

challenged the judgment of the High Court of Himachal Pradesh in the

WP(C) 16915/05 -: 19 :-

Apex Court joining Sri.Kali Das Batish and Sri.Ram Kishore Prasad as

respondents in the appeal. The appeals filed by Sri.Ram Kishore Prasad

and Union of India were heard together by the Apex Court. It was argued

on behalf of Union of India before the Apex Court that the High Court of

Himachal Pradesh exceeded its power of judicial review and erred in

interfering with the decision of the Union of India and the appointing

authority not to appoint Sri.Kali Das Batish as Judicial Member of the

CAT. It was argued that the High Court of Himachal Pradesh failed to

bear in mind the fact that the proposal to appoint the candidates along

with all the relevant papers including the report of the Intelligence

Bureau had been forwarded to the Honourable the Chief Justice of India

for his concurrence and that the Honourable the Chief Justice of India

had after consideration of all the materials concurred with the proposal

of the Government of India to appoint candidates other than Sri.Kali Das

Batish and Sri.Ram Kishore Prasad as indicated in the proposal submitted

by the Government of India. Accepting the contentions of the Union of

India, the Apex Court in Union of India and others v. Kali Das Batish

and another (supra) held as follows:

“10. 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,

WP(C) 16915/05 -: 20 :-

therefore, appears to have been made a Respondent in this

case also.

11. 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 Seconds 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.”

12. The learned Solicitor General further contends

that the High Court singularly failed to keep in mind the

scope of Sections 6 and 7 of the Act, that along with the

proposal for appointment of the candidates all the relevant

papers, including the IB report, had been forwarded to the

Chief Justice of India for his concurrence, and that, after

consideration of all the material, the Chief Justice of India

had concurred with the proposal of the Government of

India for the appointment of the candidates as indicated in

the proposal.

13. There is merit in the submissions of the Ld.

Solicitor General. It appears that the High Court has acted

in the matter as if dealing with an appointment made by an

executive officer. It must be remembered that, the CAT is a

WP(C) 16915/05 -: 21 :-

Tribunal constituted under Article 323-A 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

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

WP(C) 16915/05 -: 22 :-

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.

14. Unfortunately, the High Court seems to have

proceeded on the footing that the appointment was being

made on its own by the Central Government and that there

was an irregular procedure followed by the Secretary by

giving undue importance to the IB report. It was most

irregular on the part of the High Court to have sat in appeal

over the issues raised in the IB report and attempted to

disprove it by taking affidavits and the oral statement of the

Advocate General at the Bar. We strongly disapprove of such

action on the part of the High Court, particularly when it was

pointed out to the High Court that, along with the proposals

made by the Government, the Minister of State had

specifically directed for submission of the IB report to the

Chief Justice of India for seeking his concurrence, and that

this was done. We note with regret that the High Court

virtually sat in appeal, not only over the decision taken by the

WP(C) 16915/05 -: 23 :-

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.”

17. In Union of India and others v. Kali Das Batish and another

(supra) the Apex Court held that it is not open to the High Court to sit in

appeal not only over the decision of the Government of India, but also

the decision taken by the Honourable the Chief Justice of India by

attempting to disprove the issues raised by the Intelligence Bureau. The

Apex Court approved the reasoning of the High Court of Jharkhand that

when the decision to appoint or not to appoint a candidate as Judicial

Member of the CAT has been made with the concurrence of the

Honourable the Chief Justice of India, there is no scope for judicial

review. The Apex Court also cautioned that the courts exercising the

WP(C) 16915/05 -: 24 :-

power of judicial review shall keep in mind the recognised limit, albeit

self-recognised, to the exercise of such power, which was highlighted by

the Apex Court in K.Ashok Reddy v. The Government of India and

others – (1994) 2 SCC 303. In K.Ashok Reddy v. The Government of

India and others (supra) the Apex Court accepted the principle that

reviewability of discretionary power would depend on the subject matter

and held 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.” The

Apex Court in Union of India and others v. Kali Das Batish and another

(supra) also held that the mere inclusion of the name of a candidate in

the select list gives him no right to be appointed and that if there was no

right, there could be no occasion to maintain a writ petition for the

enforcement of a non-existing right.

18. The issue raised in the case on hand is in my opinion, covered

against the petitioner by the decision of the Apex Court in Union of

India and others v. Kali Das Batish and another (supra). The pleadings

and the materials in the case on hand disclose that though the Selection

Committee had initially recommended the name of the petitioner for

appointment as Administrative Member of the CAT, after the report from

the Intelligence Bureau which contained adverse remarks about him was

received, the matter was placed before the Honourable the Chief Justice

WP(C) 16915/05 -: 25 :-

of India, who in turn, placed the matter before the Selection Committee.

The Selection Committee considered the matter and decided to withdraw

their earlier recommendation. The Honourable the Chief Justice of India

concurred with the decision of the Selection Committee to withdraw their

earlier recommendation and the appointing authority also concurred with

it. The petitioner was therefore not appointed though Sri.N.

Ramakrishnan, IAS whose name was also recommended by the Selection

Committee was appointed as Administrative Member in the CAT,

Ernakulam Bench. The attempt made by the petitioner in this Writ

Petition is to demonstrate that the report submitted by the Intelligence

Bureau was not factually correct and that it was engineered by

Sri.K.J.Alphonse with whom he was not on good terms. The petitioner

relies on Ext.P13 to contend that no enquiry was held against him as

reported by the Intelligence Bureau while he was the Accountant General

of Kerala. The Apex Court has in Union of India and others v. Kali Das

Batish and another (supra) held that the High Court exercising the

power of judicial review cannot sit in appeal over the report submitted by

the Intelligence Bureau, attempt to disprove it and in that process sit in

appeal over the decision taken by the Honourable the Chief Justice of

India as regards the choice of candidates selected for appointment as

Judicial Members of the CAT. Therefore, this Court cannot entertain the

petitioner’s plea and hold as requested by him that as the Selection

Committee had withdrawn their earlier recommendation based on the

WP(C) 16915/05 -: 26 :-

report submitted by the Intelligence Bureau, which the petitioner

attempts to prove was false, the decision taken by the Government of

India not to appoint him is arbitrary and is liable to be invalidated.

19. The Selection Committee headed by the Honourable Mr. Justice

K.G.Balakrishnan, presently the Chief Justice of India, had after the report

of the Intelligence Bureau on the petitioner’s character and antecedents

was placed before them along with the relevant files, reconsidered the

matter and decided to withdraw their earlier recommendation to appoint

him as Administrative Member of the CAT. The Honourable the Chief

Justice of India concurred with the decision of the Selection Committee

and this was accepted by the appointing authority also. As held by the

Apex Court in Union of India and others v. Kali Das Batish and another

(supra) the consultation with the Honourable the Chief Justice of India

mandated in Sections 6 and 7 of the Administrative Tribunals Act, 1985

is not an empty formality, but one intended to ensure that only suitable

candidates are selected for appointment as Members of the CAT. As held

by the Apex Court in K. Ashok Reddy v. Government of India and

others (supra) the consultation with the Honourable the Chief Justice of

India is “an inbuilt check against arbitrariness and bias,” indicating the

absence of need for judicial review on those grounds. Further, the Apex

Court has in National Institute of Mental Health and Neuro Sciences v.

Dr. K.Kalyana Raman – A.I.R. 1992 S.C. 1806 held that the function of a

WP(C) 16915/05 -: 27 :-

Selection Committee is neither judicial nor adjudicatory, but purely

administrative and that they are not required to record reasons for the

selection or non selection of a candidate in the absence of any rule or

regulation requiring them to do so. No provision requiring the Selection

Committee to record reasons for not selecting candidates seeking

appointment as Members of the CAT was brought to my notice.

Therefore, the Selection Committee was not bound to record reasons for

not selecting the petitioner, though they had before the report of the

Intelligence Bureau was received, recommended his name for

appointment as Administrative Member. This Court exercising the power

of judicial review cannot therefore, as held by the Apex Court, sit in

appeal over the decision of the Selection Committee or of the

Honourable the Chief Justice of India who approved it, substitute its own

decision and invalidate the decision of the Government of India. It is also

now well settled by a series of decisions of the Apex Court including the

decision in Union of India and others v. Kali Das Batish and another

(supra) that the mere inclusion of a candidate in the select list does not

confer on him a right to be appointed and that if there was no right,

there could be no occasion to maintain a writ petition for the

enforcement of a non-existing right. Therefore, the petitioner cannot, in

my considered opinion, assail the decision taken by the Government of

India not to appoint him as Administrative Member of the CAT.

For the reasons stated above, I hold that the petitioner is not

WP(C) 16915/05 -: 28 :-

entitled to the reliefs prayed for in this Writ Petition. The Writ Petition

fails and is accordingly dismissed. No costs.

P.N.Ravindran,
Judge.

ess 15/2

WP(C) 16915/05 -: 29 :-

The Apex Court has in Union of India and others v. Kali Das Batish and

another (supra) held that this Court exercising the power of judicial

review cannot sit in appeal over the report submitted by the Intelligence

Bureau, attempt to disprove it and proceed on the basis that the

Honourable the Chief Justice of India or the Chairman and Members of

the Selection Committee would not have applied their mind before taking

the decision not to appoint the petitioner. Further, as held by the Apex

Court in a series of decisions, the mere inclusion of a candidate in the

select list does not confer on him a right to be appointed. As the

selection of the petitioner was subject to verification of his character and

antecedents and as the Selection Committee had on receipt of the report

of the Intelligence Bureau and the notings in Ext.P10 file, decided to

withdraw their earlier recommendation, the petitioner, who did not have

a right to be appointed cannot in my opinion, question the decision

taken by the competent authorities not to appoint him as Judicial

Member of the CAT. The petitioner does not, in my opinion, have the

right to seek a writ in the nature of mandamus commanding the first

respondent to appoint him as Administrative Member of the CAT.

Add see para 14

WP(C) 16915/05 -: 30 :-

Add para 17

Add page 25

WP(C) 16915/05 -: 31 :-

Add see before para 12

The learned Senior Advocate appearing for the petitioner contends that

the Joint Secretary had made the notings in the file referred to above to

the effect that the complaint that the petitioner had faced with an

WP(C) 16915/05 -: 32 :-

enquiry in connection with the recruitment of contingency staff from

among the relatives of Class IV staff of the Accountant General’s office

while he was Accountant General of Kerala and that the enquiry report

was unfavourable to the petitioner and therefore he proceeded on

voluntary retirement is a serious complaint and that though the details of

the report are not available, it is not worthwhile to make enquiries from

the Accountant General’s office at this stage and that from the IB report,

it seems fairly clear that the petitioner’s general reputation is somewhat

controversial. The learned Senior Advocate for the petitioner submits

that it was the said adverse report which persuaded the Selection

Committee to reconsider its earlier decision and that as it has been

established that there was no enquiry at all, the Government of India is

bound to reconsider its stand and place the matter before the Selection

Committee afresh. The learned counsel appearing for the respondents

on the other hand contend relying on the decision of the Apex Court in

Union of India and others v. Kali Dass Batish and another (supra) that

the decision of the Selection Committee is not justifiable and this Court

cannot exercise a judicial review and issue a writ in the nature of

mandamus commanding the Government of India to reconsider its

decision dehors the report of the IB.

7. From the pleadings and materials on record, it is evident that

the Joint Secretary to Government of India rejected the recommendation

of the Selection Committee based on the report of the IB that any enquiry

WP(C) 16915/05 -: 33 :-

held against the petitioner while he was the Accountant General of Kerala

that enquiry report was unfavourable to him and therefore, he had

proceeded on voluntary retirement. Though the petitioner has positively

averred that the notings evidenced by Ext.P10 is false and that no

enquiry was ever held, the first respondent has not chosen to controvert

the said fact. Ext.P13 establishes beyond doubt that no enquiry

whatsoever was held against the petitioner in connection with the

recruitment of contingency staff while he was the Accountant General of

Kerala. The notings in Ext.P10 file placed before the Selection Committee

were brought to the notice of the Selection Committee as directed by the

Honourable the Chief Justice of India and the Selection Committee on

going through the notings evidenced by Ext.P10 decided to withdraw the

recommendation to appoint the petitioner as Administrative Member in

the CAT. The Honourable the Chief Justice of India concurred with the

decision of the Selection Committee to withdraw its earlier decision and

this was accepted by the appointing authority, namely, the Government

of India. It is now very clear that the report submitted by the IB is

reflected the true state of affairs and that the Joint Secretary was misled

the notings submitted in Ext.P10 which led to the present dispute. The

pleadings and materials on record establish that the notings evidenced

by Ext.P10 were made by the Joint Secretary based on incorrect

information furnished to him by the IB. Then the question is whether

instead of the said fact, this Court can exercise judicial review and direct

WP(C) 16915/05 -: 34 :-

the first respondent to reconsider its decision. The learned counsel

appearing for the respondents relied on the decision of the Apex Court

in Union of India and other v. Kali Dass Batish and another (supra) to

contend that this Court cannot exercise power of judicial review even if it

is shown that the report submitted by the IB was false or was not based

on any cogent material. The Apex Court considered the scope of judicial

review in the matter of appointment of the Administrative Member in the

CAT made in consultation with the Honourable the Chief Justice of India.

7 vacancies of Judicial Members and 3 vacancies of Administrative

Members in the CAT arose during the period from 1.7.2001 to

31.12.2001. Notifications were invited to fill up the said vacancies.

Sri.Kali Dass Batish and Sri.Ram Kishore Prasad had also applied for

appointment to the post of Judicial Member in the CAT. The Selection

Committee chaired by the Honourable the Chief Justice of India met on

18.7.2001 and considered the names of 121 candidates including Sri.Kali

Dass and Sri.Ram Kishore Prasad. The Selection Committee

recommended the names of 7 persons for appointment as Judicial

Members and 3 persons for appointment as Administrative Members. A

waiting list of equal number of candidates was also prepared. The names

of Sri.Kali Dass and Sri.Ram Kishore Prasad were serial Nos.1 and 6 in the

main list of candidates recommended for appointment as Judicial

Members. The names of all the candidates included in the main list and

the waiting list were sent to the IB for verification of character and

WP(C) 16915/05 -: 35 :-

antecedents. On receipt of the report from the IB, the Director

(Administrative Tribunal), Ministry of Personnel, Public Grievances and

Pensions noted in the file certain adverse remarks about Sri.Kali Dass

Batish. The files thereafter forwarded to the Honourable the Chief Justice

of India, who concurred with the Joint Secretary vide confidential

memorandum dated 6.11.2001. Sri.Kali Dass Batish and Sri.Ram Kishore

Prasad were not appointed. They moved the High Courts of Himachal

Pradesh and Jharkhand. The High Court of Jharkhand dismissed the Writ

Petition filed by Sri.Ram Kishore Prasad holding that mere inclusion of

the name of a candidate in the select list gave him no right to be

appointed and that exclusion of his name on the basis of the IB report

received which was made available to the Honourable the Chief Justice of

India and whose concurrence was obtained by the Government of India

after apprising the Honourable the Chief Justice of India of all the

relevant facts, left no scope for judicial review. The Writ Petition filed by

Sri.Kali Dass Batish was allowed by the High Court of Himachal Pradesh.

Sri.Ram Kishore Prasad moved the Apex Court in appeal. The Union of

India also moved the Apex Court challenging the correctness of the

decision of the High Court of Himachal Pradesh. Both the appeals were

heard together. The Apex Court thereupon held disapproving the action

of the High Court of Himachal Pradesh as follows.

The Apex Cort held that it was irregular on the part of the High Court to

WP(C) 16915/05 -: 36 :-

have sat in appeal over the issues raised in the IB report and attempted

to disprove it and that the High Court was in error in sitting appeal over

the decision of the Honourable the Chief Justice of India.. The Apex

Court repelled the argument that the Honourable the Chief Justice of

India might not have been supplied with the necessary inputs and that it

is not open for anyone to contend that the Honourable the Chief Justice

might have given concurrence without application of mind or without

calling for the necessary inputs. The Apex Court also held that mere

inclusion of a candidate’s name in the selection list does not give him a

right to be appointed and that there is no occasion to maintain a Writ

Petition for enforcement of a non-existing right. I am afraid that the

notings in Ext.P10 might not be fully correct. As held by the Apex Court,

this Court cannot presume that the Honourable Chief Justice of India

might not have been supplied with necessary inputs and that the

Honourable Chief Justice of India might have given concurrence without

calling for the necessary inputs. Judicial discipline commands that the

principle laid down by the Apex Court is followed.

For the reasons stated above, I hold that the reliefs sought for in

this Writ Petition cannot be granted. The Writ Petition fails and is

accordingly dismissed. No costs.

P.N.Ravindran,
Judge.

ess 12/2

WP(C) 16915/05 -: 37 :-

3. According to the petitioner, the post of Accountant General is a post

equivalent to the post of Joint Secretary of the Government of India and

Civil Servants who are consistent and outstanding in their performance

are posted as Joint Secretaries in the various Department of the

Government of India. He contends that as the post of Accountant

General is a post equivalent to the post of Joint Secretary of the

Government of India, he has 8 years experience in the category of Joint

Secretary and is therefore eligible and qualified to be appointed as

Administrative Member of the Administrative Tribunal constituted under

the Administrative Tribunals Act, 1985, hereinafter referred to as the

WP(C) 16915/05 -: 38 :-

“Act” for short, and that the Government of India had by a notification

invited applications from eligible candidates to fill up three vacancies of

Administrative Members in the CAT. One among the vacancies was in the

CAT, Ernakulam Bench. Pursuant to the notification issued by the

Government of India, the petitioner submitted Ext.P1 application dated

23.8.2004. The guidelines regarding the constitution of the Selection

Committee and the procedure to be adopted by the Selection Committee

for selection of Vice Chairman and members of the CAT have been laid

down by the Department of Personnel, Government of India in order

No.A-1013/54/90-At dated 15.4.1991 and 23.4.1991. As per the said

Government order, the Selection Committee is required to be chaired by

a Sitting Judge of the Honourable the Supreme Court of India, nominated

by the Honourable the Chief Justice of India. The Selection Committee

also consists of (1) Secretary, Ministry of Law and Justice (Department of

Legal Affairs), (2) Secretary, Ministry of Personnel and (3) Chairman of the

CAT. The appointment of Judicial and Administrative Members of the

CAT is to be made by the Central Government after taking into

consideration the recommendation of the Selection Committee in

consultation with the Honourable the Chief Justice of India. The

petitioner states that the Selection Committee constituted in the year

2004 was headed by the Honourable the Chief Justice Mr.Justice

K.G.Balakrishnan (as His Lordship then was) and that the Selection

Committee recommended his name along with that of

WP(C) 16915/05 -: 39 :-

Sri.N.Ramakrishnan, IAS for appointment against two vacancies of

Administrative Members in the CAT, Ernakulam Bench. The petitioner

further states that though he had a impeccable track in his carrier, he

was not appointed though Sri.N.Ramakrishnan, IAS was appointed as

Administrative Member in the CAT, Ernakulam Bench. He thereupon filed

this Writ Petition on 6.6.2005 with the Government of India represented

by the Secretary, Ministry of Personnel as the respondent contending that

the Selection Committee failed to appoint him as Administrative Member

though the Selection Committee headed by the Honourable the Chief

Justice Mr.Justice K.G.Balakrishnan has included his name in the select

list. He contended that the action of the Government of India in not

appointing him as Administrative Member is arbitrary and violative of his

fundamental rights guaranteed under Articles 14 and 16 of the

Constitution. He had also prayed for a writ in the nature of mandamus

commending the respondent/ Government of India to appoint him as

Administrative Member in the CAT. In the Writ Petition, the petitioner

had also prayed for an interim order staying the appointment to the

remaining vacancy of Administrative Member in the CAT, Ernakulam

Bench. The additional second respondent was thereafter appointed as

Administrative Member and Vice Chairman of the CAT, Ernakulam Bench.

The petitioner thereupon filed I.A.No.93 of 2006 to implead the

additional second respondent as a party to this Writ Petition. He also

filed I.A.No.2831 of 2006 to amend the Writ Petition by incorporating a

WP(C) 16915/05 -: 40 :-

prayer to quash the appointment of the additional second respondent.

In the Writ Petition, the petitioner also relied on the decision of Himachal

Pradesh in Kali Dass Batish v. Union of India and others – 2005(1) SLR

412 to contend that the Government of India is bound to appoint

candidates recommended by the Selection Committee.

4. The first respondent filed a counter affidavit contending inter

alia that the claim of the petitioner that he was selected for appointment

as Administrative Member in the CAT, Ernakulam Bench is a speculative

argument and that the correctness of the decision of the Himachal

Pradesh in Kali Dass Batish v. Union of India (supra) has been held

against, that the Apex Court ceased the matter and that the petitioner is

not entitled to any reliefs prayed for in the Writ Petition.

Further, vacancies were related to the period from 1.1.2004 to

30.6.2004 and the petitioner has no case that the vacancies were not

filled up and the petitioner cannot seek a writ in the nature of mandamus

commanding the first respondent to appoint him as Administrative

Member in the CAT, Ernakulam Bench. Therefore, even if the report

submitted by the Intelligence Bureau to the effect that there was no

enquiry against the petitioner while he was Accountant General of Kerala

and that the finding of the Intelligence Bureau which adversed to the

petitioner is shown to be false. This Court cannot presume that the

Honourable the Chief Justice of India or the Chairman and Members of

WP(C) 16915/05 -: 41 :-

the Selection Committee would not have been supplied necessary inputs

and that they would have given their concurrence to the proposal of the

Union of India without application of mind.

10. Per contra, the learned Assistant Solicitor General of India appearing

for the Government of India submitted that the decision taken by the

Selection Committee to withdraw their earlier recommendation and the

decision taken by the appointing authority not to appoint the petitioner

are not justiciable and that this Court cannot exercise the power of

judicial review and issue a writ in the nature of mandamus commanding

the Government of India to reconsider its earlier decision and appoint the

petitioner.

and after a report was obtained from the Intelligence Bureau, the

Director (AT), Ministry of Personnel, Public Grievances and Pensions

noted in the file three adverse remarks about Sri.Kali Dass Batish. The

Director (AT) however expressed the opinion that since Sri.Kali Dass

Batish had been recommended by the Selection Committee headed by a

Judge of the Honourable the Supreme Court, the benefit of doubt had to

be given to him and the adverse reports about his performance as a

Government Pleader must be treated as counter balanced by the

recommendations of the Selection Committee headed by a Sitting Judge

of the Honourable the Supreme Court. The Joint Secretary (AT&A),

Ministry of Personnel and Training also made certain notings in the file

WP(C) 16915/05 -: 42 :-

where inter alia he stated that Sri.Kali Dass Batish has strong political

affiliations, that he appears to be of average caliber and that there is

nothing adverse against his character and integrity. On 30.10.2001, the

Secretary (Personnel) made a noting on the file that Sri.Kali Dass Batish

need not be appointed. Thereafter, as directed by the Minister of State,

Personnel and Public Grievances and Pensions the file was placed before

the Honourable the Chief Justice of India along with all necessary papers

including the report of the Intelligence Bureau.

The Joint Secretary who made the notings in Ext.P10 which I have

extracted above, had noted that though the details of the report of

enquiry are not available, it would not be worthwhile to make enquiries

with the Accountant General’s office at that stage and that given the

information revealed by the Intelligence Bureau report, it is clear that the

petitioner’s general reputation is somewhat controversial. The Joint

Secretary therefore recommended that the recommendation of the

Selection Committee may not be accepted since the facts brought out by

the Intelligence Bureau were not brought to the attention of the Selection

Committee which had before them only a simple CV of the petitioner.

The matter then went back to the Honourable the Chief Justice of India

together with the relevant files which included the report of the

Intelligence Bureau and the notings referred to in Ext.P10. The

Honourable the Chief Justice of India placed the matter before the

WP(C) 16915/05 -: 43 :-

Selection Committee and the Selection Committee resolved to withdraw

their earlier recommendation to appoint the petitioner.

20. As noticed by the Apex Court in Union of India and others v.

Kali Das Batish and another (supra), this Court cannot proceed on the

basis that the Honourable the Chief Justice of India or the Chairman and

Members of the Selection Committee would have proceeded to act

without application of mind.

Add para 16

Add para 12

I shall now refer to the decisions of the Apex Court relied on by the

learned Senior Advocate appearing for the petitioner.

Add para 14

, referred to and relied on by the learned counsel appearing for the first

WP(C) 16915/05 -: 44 :-

respondent.