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.
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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)
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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
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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
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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
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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
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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
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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.