{"id":165301,"date":"2001-03-02T00:00:00","date_gmt":"2001-03-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-a-k-doshi-vs-union-of-india-on-2-march-2001"},"modified":"2018-04-13T02:25:19","modified_gmt":"2018-04-12T20:55:19","slug":"dr-a-k-doshi-vs-union-of-india-on-2-march-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-a-k-doshi-vs-union-of-india-on-2-march-2001","title":{"rendered":"Dr. A. K. Doshi vs Union Of India on 2 March, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dr. A. K. Doshi vs Union Of India on 2 March, 2001<\/div>\n
Author: S N Variava.<\/div>\n
Bench: D.P. Mohapatra, S.N. Variava<\/div>\n
           CASE NO.:\nAppeal (civil) 1692  of  2001\nAppeal (civil)\t1693\t of  2001\nAppeal (civil)\t1694\t of  2001\n\n\n\nPETITIONER:\nDR. A. K. DOSHI\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA\n\nDATE OF JUDGMENT:\t02\/03\/2001\n\nBENCH:\nD.P. Mohapatra & S.N. Variava\n\n\n\n\nJUDGMENT:\n<\/pre>\n
S. N. VARIAVA. J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
L…I…T…….T…….T…….T…….T…….T…….T..J<\/p>\n
    These  three  Appeals are directed against the  Judgment
\ndated 20th December, 1999 of the Delhi High Court.  They are
\nbeing disposed of by this common Judgment.  In this Judgment
\nparties\t will  be  referred to in their\t capacity  in  Civil
\nAppeal\tarising from SLP No.  19580 of 1999.  Briefly stated
\nthe facts are as follows:\n<\/p>\n
    In\t1997  some  posts of Member, Company Law  Board\t had
\nfallen vacant.\tA Selection Committee headed by Mr.  Justice
\nS.   C.\t  Agarwal, a nominee of the Chief Justice of  India,
\nwas  constituted to make the selection.\t The minutes of\t the
\nSelection Committee, dt.  2nd June 1997, read as follows:\n<\/p>\n
    4.\tOn the basis of the performance of the candidates in
\nthe interview and taking into consideration all the relevant
\nfactors,  the  Selection  Committee   found  the   following
\ncandidates  suitable,  in  order of merit,  and\t accordingly
\nrecommended  them for appointment as Members of the  Company
\nLaw Board :-\n<\/p>\n
    1. Shri S. B. Mathur       - Member (Technical)\n    2. Shri C. D. Paik\t       - Member (Judicial)\n       (ST)\n\n<\/pre>\n
    5.1\t The  reserve  panel, to be used for  this  post  of
\nMember,\t Technical  in\tthe  event of  Shri  SB\t Mathur\t not
\njoining,  shall\t be  as\t follows in the\t order\tof  priority
\nindicated below :-\n<\/p>\n
1. Dr. A. K. Doshi\n<\/p>\n
2. Shri R. Vasudevan<\/p>\n
5.2 These candidates, if appointed, will rank junior to
\nShri C. D. Paik.\n<\/p>\n
6.    The Selection Committee did not find any candidate
\nsuitable for the post of Member (Judicial) (SC).\n<\/p>\n
    Thus  the  Selection  Committee  had  selected  the\t 2nd
\nRespondent.  The reserve panel consisted of the names of the
\nAppellant  and\tShri R.\t Vasudevan.  As per  this  selection
\nonly  the  name of the 2nd Respondent and Shri C.  D.\tPaik
\ncould  be  sent to the Appointments Committee.\tIt  was\t not
\ndenied\tthat  in  normal course the  Appointments  Committee
\nwould  act on the recommendations of the Selection Committee
\nand  these  two persons would have been appointed.  Shri  C.
\nD.   Paik has been appointed as Member (Judicial).  In these
\nAppeals\t the dispute relates only in respect of\t appointment
\nto the post of Member (Technical).\n<\/p>\n
    On\t10th October 1997 the Secretary to the\tAppointments
\nCommittee,  whilst forwarding the name of the 2nd Respondent
\nto  the\t Appointments Committee, gave the following note  on
\nthe relevant file:\n<\/p>\n
“In view of the chequered background of Shri
\nS. B. Mathur, he does not seem to be a fit
\nperson of character and unblemished record,
\nfor occupying the position of Member,
\nCompany Law Board.”\n<\/p>\n
    We\twere  informed that the Appointments  Committee\t was
\nalso  informed by the Secretary that a penalty of  reduction
\nof pay by one step in the pay-scale for a period of one year
\nwith  restoration  to original stage on the expiry  of\tthat
\nperiod\thad  been imposed on the 2nd Respondent and that  he
\nhad  got  published  a brief analysis on the report  of\t the
\nWorking\t Group on Companies Act through one Bharat Law House
\nPrivate\t  Limited,  New\t Delhi\t and  thereafter   requested
\npermission  to\taccept\tRs.10,000\/- as honorarium  from\t the
\nPublisher.   For  this act he had been issued a warning\t for
\nnot  obtaining\tthe prior approval and had been directed  to
\ncredit\tto  the\t Government  that entire  amount.   The\t 2nd
\nRespondent   had  complied  with   those  directions.\t The
\nAppointments  Committee\t was also informed that against\t the
\n2nd   Respondent  there\t was  a\t complaint   pertaining\t  to
\npublication  of an advertisement for shifting of the  Office
\nof  Regional Director, Kanpur to Ghaziabad or NOIDA on which
\nRs.   1000\/-  was  spent.   On a query from  Court  we\twere
\ninformed  that the first allegation had been brought to\t the
\nnotice\tof  the\t Selection  Committee\tbut  the  other\t two
\nallegations  had  not  been  brought to the  notice  of\t the
\nSelection  Committee  even though they related to  a  period
\nprior to the date when the Selection Committee met to select
\nsuitable candidates for the post.  We were informed that the
\nother  two allegations were not brought to the notice of the
\nSelection  Committee  as in those cases only a\twarning\t had
\nbeen  issued and no entry had been made in the\tconfidential
\nrecords.   One\twonders\t how such material could  have\tbeen
\nplaced\tbefore the Appointments Committee when admittedly it
\nwas  not  considered serious enough to be placed before\t the
\nSelection Committee.\n<\/p>\n
    By\tplacing\t on  file the above mentioned  comments\t and
\nmaterials,  which  had not been placed before the  Selection
\nCommittee,  the\t Secretary  of\tthe  Appointments  Committee
\neffectively   ensures  that  the   2nd\trespondent  was\t not
\nappointed.   On\t the facts on record it is clear to us\tthat
\nthe  name of 2nd respondent was rejected by the Appointments
\nCommittee,  on 4th December, 1997 because of the unwarranted
\ninterference  by  the  Secretary.  By its  Order  dated\t 4th
\nDecember, 1997 the Appointments Committee also directed that
\na  fresh  proposal  for appointment  of\t Member\t (Technical)
\nCompany Law Board be submitted.\n<\/p>\n
    The\t reserve  panel\t was  to  be used  in  even  of\t 2nd
\nrespondent  not\t joining.   As\tthe  Appointments  Committee
\nrejected  the  name of the 2nd Respondent steps should\thave
\nbeen  taken to place the names of the candidates included in
\nthe  reserved  panel  before   the  Appointments  Committee.
\nHowever,  on  4th  December, 1997, a charge sheet  had\tbeen
\nissued\tagainst the Appellant for a major penalty under Rule
\n14  of the C.C.S.  (C.C.A.) Rules, 1965.  This was an  event
\nwhich  took  place  subsequent\tto   the  selection  by\t the
\nSelection  Committee.\tThis  event necessarily\t had  to  be
\nbrought\t to  the notice of the Appointments Committee.\t Had
\nthis  been  brought  to\t the   notice  of  the\tAppointments
\nCommittee,  there  could be no doubt that  the\tAppointments
\nCommittee would have rejected the name of the Appellant.  No
\nfurther\t names were forwarded to the Appointments  Committee
\nand  no\t step to initiate fresh proposal for appointment  to
\nthe posts was initiated.  In the meantime the 2nd Respondent
\nhad  also  made\t a representation against rejection  of\t his
\nname.\tThat  representation should have been placed  before
\nthe  Appointments  Committee.\tThe representation  was\t not
\nplaced\tbefore the Appointments Committee.  Nothing was done
\ntill  May  1998\t when the Appellant got\t exonerated  by\t the
\nDisciplinary  Authority.  Thereafter almost immediately\t the
\nrepresentation\tof the 2nd Respondent along with the name of
\nthe  Appellant was sent to the Appointments Committee.\tEven
\nat  this stage the following noting dated 14th May, 1988 was
\nmade by the Secretary of the Appointments Committee:\n<\/p>\n
    “23\t Regarding Shri Mathur, it may be stated that the
\nACC  had  considered him not fit for appointment  as  Member
\n(Technical)  in\t view of the chequered background and  other
\nconsiderations\tin December, 1997.  The note that led to the
\nsaid  decision\tis on pp.  7-13\/N (L.F.\t No.  18 (35)  EO\/97
\n(ACC).\t In addition, it has come to light that he had\tbeen
\nwarned\ttwice  for some improprieties committed by  him,  as
\ndiscussed  in  paras  17.2.   and   17.3.   above.   It\t is,
\ntherefore,  felt that even on reconsideration Shri  Mathur’s
\nclaim  for  the post does not merit acceptance.\t As  regards
\nDr.   Doshi,  after  his having been exonerated of  all\t the
\ncharges\t against him, it appears that his appointment can be
\napproved.   ACC\t may like to approve the appointment of\t Dr.
\nA.   K.\t Doshi as Member (Technical), Company Law Board till
\nthe  date  of his superannuation on attaining the age of  60
\nyears.”\n<\/p>\n
    Thus  even\tat  that  stage it was made  sure  that\t the
\nAppointments  Committee\t did not consider and\/or accept\t the
\nname  of  the 2nd Respondent but considers the name  of\t the
\nAppellant.   It\t is  under   these  circumstances  that\t the
\nAppellant  came\t to  be\t appointed  as\tMember\t(Technical),
\nCompany Law Board.\n<\/p>\n
    The\t appointment of the Appellant was challenged by\t the
\n2nd  Respondent before the Central Administrative  Tribunal.
\nThe  Central  Administrative Tribunal by an Order dated\t 3rd
\nFebruary,  1999\t quashed the appointment of  the  Appellant.
\nThe  Appellant challenged the Order dated 3rd February, 1999
\nin  a  Writ Petition before the High Court at  Delhi.\tThis
\nWrit  Petition came to be dismissed by the impugned Judgment
\ndated 20th December, 1999.\n<\/p>\n
    Civil  Appeal  arising out of SLP No.  19580 of 1999  is
\nfiled  by the Appellant.  The Appellant is aggrieved by\t his
\nappointment  being  set aside by the Central  Administrative
\nTribunal  and  the  confirmation of that Order by  the\tHigh
\nCourt.\t Civil Appeal arising out of SLP(C) No CC 4869\tof
\n2000  is filed by the 2nd Respondent.  2nd Respondent  seeks
\nto  challenge that portion of the High Court Judgment  where
\nit  is held that he had not challenged his rejection by\t the
\nAppointments Committee.\t Civil Appeal arising out of SLP No.
\n6435  of 2000 is by the 1st Respondent.\t The 1st  Respondent
\nis aggrieved by the strictures passed against them for their
\nconduct\t in showing favouritism and the fact that they\thave
\nbeen  directed\tto  initiate process of selection  of  fresh
\ncandidates by the Selection Committee.\n<\/p>\n
    On behalf of the Appellant Mr.  Goburdhan submitted that
\nthe  2nd Respondent had no locus standi to file the Petition
\nbefore\t the  Central  Administrative\tTribunal.   It\t was
\nsubmitted  that\t the  Appointments   Committee\thad  already
\nrejected  the name of the 2nd Respondent and that  rejection
\nhad  not been challenged by him.  It was submitted that once
\nthe  2nd Respondent had not challenged his rejection, he had
\nno  locus  standi  to  challenge   the\tappointment  of\t the
\nAppellant.  On behalf of the 2nd Respondent it was submitted
\nthat  he had challenged both the selection of the  Appellant
\nas well the rejection of his name.\n<\/p>\n
    In\tour  view, on the facts of this case the  contention
\nraised\ton  behalf of the Appellant that the 2nd  respondent
\ncould  not  challenge the Appellant’s appointment  since  he
\n(2nd  respondent)  had not challenged the rejection  of\t his
\nname by the Appointment Committee, cannot be accepted.\tEven
\nassuming  that the 2nd Respondent could have challenged\t the
\nrejection  of his name by the Appointment Committee he would
\nhave  a cause of action to challenge the appointment of\t the
\nAppellant who was undisputedly placed below him in the panel
\ndrawn up by the Selection Committee.\n<\/p>\n
    The\t next  submission was that once the name of the\t 2nd
\nRespondent  was\t rejected then the  Appellant  automatically
\nbecame\tentitled  to be appointed as his name was second  in
\nthe Select List.  In support of this submission reliance was
\nplaced\ton the case of A.  P.  Aggarwal vs Govt.  of NCT  of
\nDelhi  and  Another,<\/a> reported in 2000 (1) S.C.C.  Pg.\t600.
\nIn  this case the Appellant (therein) and another  candidate
\nwere  the  only two included in the panel prepared  for\t the
\npost  of  Member, Sales Tax Appellate Tribunal.\t  The  other
\ncandidate  joined  but\tleft soon  thereafter.\t Instead  of
\nappointing  the\t Appellant the Government initiated  process
\nfor  fresh selection.  This was challenged by the  Appellant
\nand his challenge was upheld by this Court.  It must however
\nbe noted that, in that case the selected candidate had left.
\nThe  Appellant’s contention was also upheld on basis of a OM
\ndt.   14th May 1975, issued by the Central Government  which
\nprovided  that\tvacancy could be filled in from the  reserve
\npanel.\t Further  this\tCourt  directed\t the  Government  to
\nappoint\t that  Appellant as there was nothing  against\thim.
\nBased  on this case it was submitted that the 1st Respondent
\nwas bound to appoint the Appellant (herein) once the name of
\nthe 2nd Respondent had been rejected.\n<\/p>\n
    We\tare unable to accept this argument.  The  Government
\nof  India  has\tframed Company\tLaw  Board  (Qualifications,
\nExperience  and\t Other\tConditions of  Service\tof  Members)
\nRules,\t1993  (hereinafter  called the said  Rules).   These
\nRules  were  notified on 28th April, 1993.  Rule 4  provides
\nfor  the method of recruitment of Members.  It provides that
\nthe  selection of Members shall be made by the Government of
\nIndia in consultation with the Chief Justice of India or his
\nnominee.   Thus the appointment can only be in\tconsultation
\nwith  the Chief Justice of India or his nominee.  It is\t for
\nthat  reason that a Selection Committee headed by a  nominee
\nof  the\t Chief\tJustice\t of India  is  constituted  for\t the
\npurposes  of  selecting a Member.  All materials, which\t are
\nrelevant,  are to be placed before the Selection  Committee.
\nIt  is the Selection Committee which makes the selection  on
\nthe  basis  of\trelevant  materials.   After  the  Selection
\nCommittee  completes the exercise and recommends one or more
\nnames  for  appointment\t the recommendation along  with\t the
\nmaterials  considered  by the Selection Committee should  be
\nplaced before the Appointments Committee without any further
\naddition  or  alteration.   If in an  exceptional  case\t the
\nAppointments Committee feels that certain material which was
\nnot  available\tto be considered by the Selection  Committee
\nhas come into existence in the meantime, and the material is
\nrelevant  for  the purpose of appointment, then, the  matter
\nshould\tbe placed before the Appointments Committee with the
\nadditional  material for its consideration.  Such a  course,
\nin  our\t view, will be in accordance with the scheme of\t the
\nRules and the purpose of making appointment to the important
\npublic\toffice.\t  We  are constrained to  observe  that\t the
\nnotings\t made by the Secretary of the Appointments Committee
\nin  the file, as noted earlier, was an attempt to  interfere
\nwith the process of selection, which was neither permissible
\nunder  the  Rules nor desirable otherwise.  By indulging  in
\nsuch  unhealthy process the sanctity of the selection by the
\nSelection Committee was attempted to be set at naught.\tSuch
\nconduct\t on the part of a senior and experienced  Government
\nofficer\t does  not commend us.\tIt must be ensured  that  in
\nfuture\tsuch  a practice is not repeated.  In this case\t the
\nfacts  indicate\t that, even though the\tSelection  Committee
\nmade a recommendation, the appointment of that candidate was
\ngot rejected\/stalled.  Thereafter even though directed to do
\nso by the Appointments Committee, process of fresh selection
\nwas  not initiated.  The file was kept pending till name  of
\nthe  Appellant could be sent to the Appointments  Committee.
\nThe  facts  lead to the only conclusion that there was\trank
\nfavouritism  and  a  blatant attempt to\t get  the  Appellant
\nappointed  as  Member  (Technical), Company Law\t Board.\t  On
\nthese facts the ratio in Aggarwal’s case has no application.
\nAlso  in  the  present case there is  no  office  memorandum
\nrequiring selection from the reserve panel.\n<\/p>\n
    In view of the facts set out herein above, we are of the
\nopinion\t that the Central Administrative Tribunal as well as
\nthe  High Court were right in setting aside the\t appointment
\nof  the\t Appellant.  The Appellant had been unduly  favoured
\nand  the  candidate selected by the Selection Committee\t and
\nplaced on the merit list had been deprived of appointment.\n<\/p>\n
    It\twas  also submitted that the Central  Administrative
\nTribunal  had  no jurisdiction to entertain the Petition  of
\nthe 2nd Respondent.  It was submitted that the Appellant had
\nalready\t become\t a Member of the Company Law Board.  It\t was
\nsubmitted  that\t by  virtue  of Section 14  of\tthe  Central
\nAdministrative\t  Tribunal   Act,     1985,   the    Central
\nAdministrative\tTribunal  could only exercise  jurisdiction,
\npowers\tand authority in respect of an All India Service  or
\nto  any Civil service of the Union or a Civil post under the
\nUnion  or to a post connected with defence or in the defence
\nservices,  being  a  post  filled by  a\t civilian.   It\t was
\nsubmitted  that the post of a Member (Technical) Company Law
\nBoard  was neither an All India Service nor a Civil  Service
\nof the Union nor a Civil post under the Union.\tReliance was
\nplaced\tupon  the authority in the case of Canara  Bank\t v\/s
\nNuclear\t Power Corporation of India Ltd.  and Ors.  reported
\nin  1995  Supp.\t (3) S.C.C.  Pg.  81.  In this case  it\t was
\nheld  that the Company Law Board was a Court.  Based on this
\nauthority  it was submitted that since the Company Law Board
\nis  a  Court, its Members could not be holding\tcivil  posts
\nunder  the  Union.  It was submitted that both\tthe  Central
\nAdministrative\tTribunal and the High Court erred in holding
\nthat  the  post of a Member, Company Law Board was  a  civil
\npost.\n<\/p>\n
    Both  the  Central Administrative Tribunal and the\tHigh
\nCourt have relied upon various Rules, notably Rules 6, 7, 10
\nand  13\t of  the said Rules and concluded that\tthese  Rules
\nindicated  control  by the Government.\tIt was held that  as
\nthe  Government had control, thus the post was a civil post.
\nIt  must be mentioned that we have reservation in  accepting
\nthis  view.   However for all these years the post has\tlain
\nvacant.\t  Even if we were to hold in favour of the Appellant
\nno useful purpose would be served.  The 2nd Respondent would
\nhave  to  be given time to challenge in a proper forum.\t  On
\nfacts  set out hereinabove the end result would be the same.
\nThe selection of the Appellant would be set aside.  The post
\nwould  then lie vacant for the period it takes to dispose of
\nthat  matter.\tThe  only sufferer would be  the  litigating
\npublic.\t As in this case the facts are very gross, we see no
\nreason\tto  interfere.\t We leave this question open  to  be
\ndecided in an appropriate matter.\n<\/p>\n
    We\thave held that the appointment of the Appellant\t was
\ncorrectly  set\taside his civil Appeal should be  dismissed.
\nHowever,  as the post of the Member (Technical), Company Law
\nBoard  has remained vacant for a long time, it is absolutely
\nnecessary  that\t this post be filled up as expeditiously  as
\npossible.   In\tour view it is not at all necessary to\tsend
\nthe  matter  to\t another Selection Committee  for  selecting
\nafresh.\t  In our view interest of justice would be served if
\nthe  three  names selected by the Selection Committee  along
\nwith  the  materials placed before it are placed before\t the
\nAppointments  Committee without any nothings or comments  by
\nanybody.  Only the Report of the Selection Committee and the
\nmaterials  placed  before  it  must  be\t placed\t before\t the
\nAppointments   Committee   for\t its   consideration.\t The
\nAppointments  Committee\t must now select from amongst  these
\nnames.\n<\/p>\n
    With these directions all the Civil Appeals are disposed
\nof.  There will be no Order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dr. A. K. Doshi vs Union Of India on 2 March, 2001 Author: S N Variava. Bench: D.P. Mohapatra, S.N. Variava CASE NO.: Appeal (civil) 1692 of 2001 Appeal (civil) 1693 of 2001 Appeal (civil) 1694 of 2001 PETITIONER: DR. A. K. DOSHI Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-165301","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDr. A. K. 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