{"id":167888,"date":"2006-01-05T00:00:00","date_gmt":"2006-01-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-kali-dass-batish-anr-on-5-january-2006"},"modified":"2017-11-15T22:01:10","modified_gmt":"2017-11-15T16:31:10","slug":"union-of-india-ors-vs-kali-dass-batish-anr-on-5-january-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-kali-dass-batish-anr-on-5-january-2006","title":{"rendered":"Union Of India & Ors vs Kali Dass Batish & Anr on 5 January, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India & Ors vs Kali Dass Batish & Anr on 5 January, 2006<\/div>\n
Author: Srikrishna<\/div>\n
Bench: C.J.I., B.N. Srikrishna, R.V. Raveendran<\/div>\n
           CASE NO.:\nAppeal (civil)  6663 of 2004\n\nPETITIONER:\nUnion of India & Ors.\n\nRESPONDENT:\nKali Dass Batish & Anr.\n\nDATE OF JUDGMENT: 05\/01\/2006\n\nBENCH:\nC.J.I. , B.N. Srikrishna & R.V. Raveendran\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nwith
\nCivil Appeal Nos. 7575-7576 of 2004<\/p>\n
SRIKRISHNA, J.\n<\/p>\n
\tThis group of appeals raises the following question for determination
\nof this Court:\n<\/p>\n
What is the scope of ‘judicial review’ in an order for
\nappointment of a member of the Central Administrative
\nTribunal made in consultation with the Chief Justice of
\nIndia?\n<\/p>\n
\tThe Central Administrative Tribunal (hereinafter referred to as “the
\nCAT”) is one of  the Tribunals constituted under Section 4 of the
\nAdministrative Tribunals Act, 1985 (hereinafter referred to as “the Act”)
\nwith its jurisdiction determined by Section 14 of the Act. It exercises
\njurisdiction, powers and authority exercisable immediately on and from the
\nappointed day by all courts other than the Supreme Court with regard to
\nservice matters and disputes pertaining to service inter alia of Central
\nGovernment employees. It comprises ‘Administrative Members’ and
\n‘Judicial Members’ as respectively defined in Section 3(a) and 3(i) of the
\nAct. Sub-sections (3) and (3A) of Section 6 of the Act prescribe the
\nqualifications respectively for appointment of ‘Judicial Member’ and
\n‘Administrative Member’. The Department of Personnel and Training,
\nGovernment of India by Order dated 15.4.1991\/ 23.4.1991 has laid down
\ndetailed guidelines about the constitution and procedure to be adopted by the
\nSelection Committee for selection of Vice-Chairman and Members of the
\nCAT. In the case of selection of a Judicial Member, the Selection Committee
\nis required to be chaired by the nominee of the Chief Justice of India, who
\nshall be a sitting Judge of the Supreme Court of India and shall comprise the
\nfollowing additional members: (i) Secretary, Ministry of Law and Justice
\n(Department of Legal Affairs); (ii) Secretary, Ministry of Personnel; and (iii)
\nChairman of the CAT.\n<\/p>\n
\tSeven vacancies of Judicial Members and three vacancies of
\nAdministrative Members of the CAT arose during the period 1.7.2001 to
\n31.12.2001. Nominations were invited for these vacancies from different
\nauthorities.\n<\/p>\n
\tFirst and Second Respondents in C.A. No. 6663\/2004, namely, K.D.
\nBatish and Ram Kishore Prasad, respectively, were amongst the candidates
\nfor selection to the post of Judicial Member in the CAT. The Selection
\nCommittee met under the Chairmanship of Hon’ble Mr. Justice G.B. Patnaik
\n(as he then was) on 18.7.2001 and considered the names of 121 persons for
\nselection to the aforesaid vacancies. First and Second Respondents were also
\namong those considered for selection. The Selection Committee
\nrecommended the names of seven persons for appointment as Judicial
\nMembers and three persons for appointment as Administrative Members in
\nthe main list and an equal number of persons in the waiting list. The
\ncandidates whose names appeared in the waiting list were to be appointed in
\ncase any of the persons named in the main list were not appointed for any
\nreason. The names of First Respondent-K.D. Batish and  Second
\nRespondent- Ram Kishore Prasad were at Sl. Nos. 1 and 6, respectively, of
\nthe main list. It is the established procedure that where members of the Bar
\nare considered for such important judicial posts, their antecedents are
\nrequired to be verified through the Intelligence Bureau (hereinafter referred
\nto as “the IB”) and a report obtained from the IB. Accordingly, the names of
\nall such recommended persons were sent to the IB. After obtaining the report
\nfrom the IB, the Director (AT), Ministry of Personnel, Public Grievances
\nand Pensions made a noting on the file on 25.10.2001 in which he noted in
\nrespect of First Respondent as under: “(i) In legal circles, he is considered to
\nbe an advocate of average caliber. (ii) It is learnt that though he was allotted
\nto the Court of Justice R.L. Khurana, the learned Judge was not happy with
\nhis presentation of  cases and asked the Advocate General to shift him to
\nsome other court, which was done. (iii) He was a contender for the Shimla
\nAC seat on BJP ticket in 1982 and 1985. When he did not get the ticket, he
\nworked against the party and was expelled from the party in 1985. He was
\nsubsequently reinducted by the party in 1989.” The Director (AT) was,
\nhowever, of the view that since the candidate had been recommended by the
\nSelection Committee headed by a Judge of the Supreme Court, the benefit of
\ndoubt had to be given to him and the dissatisfaction of Justice Khurana with
\nhis performance must be treated as counterbalanced by the recommendation
\nof the Selection Committee headed by the Sitting Judge of the Supreme
\nCourt.\n<\/p>\n
\t On 29.10.2001 the Joint Secretary (AT & A), Ministry of Personnel
\nand Training made a noting to the following effect: “(i) Shri Batish has
\nstrong political affiliations and was a contender for the Shimla AC seat in
\n1982 and 1985 from BJP; (ii) He appears to be of average caliber and Justice
\nKhurana of the Himachal Pradesh High Court seems to have asked the
\nAdvocate General to shift him to some other Court; and (iii) There is nothing
\nadverse against his character or integrity.”\n<\/p>\n
\tOn 30.10.2001 the Secretary (P) made a noting on the file that Shri
\nBatish need not be appointed since his performance was so poor that he was
\nshifted to another Court. On 31.10.2001 the Minister of State made a noting
\nand directed that the IB Report along with the department recommendations
\nbe sent to the Chief Justice of India. Accordingly, the Secretary (Personnel)
\nvide Confidential Memorandum dated 6.11.2001 forwarded all necessary
\npapers including the IB Report and sought the concurrence of the Chief
\nJustice of India with regard to the names recommended by the Central
\nGovernment.\n<\/p>\n
\tOn 12.11.2001 the Chief Justice of India concurred with the proposal
\nsubmitted to him vide Confidential Memorandum dated 6.11.2001. On
\n14.1.2002 the appointments of the selected candidates were notified, but the
\nFirst and Second Respondents were not appointed.\n<\/p>\n
\tOn 30.6.2003 the Second Respondent-Ram Kishore Prasad filed a
\nWrit Petition No. 3098\/2003 before the Jharkhand High Court challenging
\nthe action of the Central Government in not appointing him as a Judicial
\nMember of the CAT and sought a direction to the Central Government to
\nappoint him on the ground of his being included in the select list. On
\n23.9.2003 the High Court of Jharkhand at Ranchi dismissed the writ petitiion
\nfiled by the Second Respondent inter alia holding that mere inclusion of the
\nname of a candidate in the select list gave him no right to be appointed, that
\nin the case of appointment to a judicial post like the CAT it was not only the
\nright, but also the duty, of the appointing authority to verify the antecedents
\nof the candidate on the basis of the report and inputs from the IB, that it was
\nopen to the appointing authority not to appoint any person whose name had
\nbeen included in the list prepared by the Selection Committee, that in
\nexcluding the petitioner-Second Respondent, on the basis of IB report
\nreceived, which was made available to the Chief Justice of India, and whose
\nconcurrence to the proposal was obtained by the Government of India after
\napprising the Chief Justice of India of all the relevant facts, left no scope for
\njudicial review, and that there was no case of mala fides worth considering.
\nIn this view of the matter, the writ petition was found to be without merit
\nand dismissed. The Second Respondent took out an application Civil Review
\nNo. 119\/2003 for review of the aforesaid judgment, which came to be
\ndismissed by the order of the Jharkhand High Court made on 11.8.2004.
\nBeing aggrieved by the aforesaid judgments, the Second Respondent has
\nfiled Civil Appeal Nos. 7575-7576\/2004 in this Court.\n<\/p>\n
\tThe First Respondent-K.D. Batish filed a Writ Petition No. 812\/2003
\nbefore the High Court of Himachal Pradesh at Shimla impugning the
\ndecision of the Central Government not to appoint him as a Judicial Member
\nof the CAT and seeking a mandamus for his appointment.Though the said
\nwrit petition was contested by the Union of India, the High Court by its
\njudgment dated 25.5.2004 allowed the writ petition and directed the
\nrespondents to the writ petition (Union of India and the appointing authority)
\nto reconsider afresh, as a special case, the petitioner-K.D. Batish for his
\nappointment as a Judicial Member of the CAT, based on his selection by the
\nSelection Committee.\n<\/p>\n
\tThe Union of India has challenged the judgment of the High Court of
\nHimachal Pradesh in CWP No. 812\/2003 by its Civil Appeal No. 6663\/2004
\nin which K.D. Batish and Ram Kishore Prasad are the First and Second
\nRespondents, respectively. Ram Kishore Prasad was a Respondent in the
\nwrit petition before the Himachal Pradesh High Court and therefore appears
\nto have been made a Respondent in this case also.\n<\/p>\n
\tThe learned Solicitor General made a frontal attack on the judgment
\nof the High Court of Himachal Pradesh contending that the High Court has
\nfar exceeded its powers of judicial review and grievously erred in interfering
\nwith the decision of the Union of India and the appointing authority not to
\nappoint the First and Second Respondents to the posts of Judicial Members
\nof the CAT, after obtaining the concurrence of the Chief Justice of India. He
\nalso contends that the High Court erred in adopting the extraordinary
\nprocedure of calling for an affidavit of the Registrar General to be filed on
\nthe basis of instructions obtained from Justice Khurana of the same High
\nCourt to be used as substantive evidence in the decision of the said writ
\npetition, though the High Court itself was aware that it was an “unusual
\nprocedure”.\n<\/p>\n
\tThe learned Solicitor General further contends that the High Court
\nsingularly failed to keep in mind the scope of Sections 6 and 7 of the Act,
\nthat along with the proposal for appointment of the candidates all the
\nrelevant papers, including the IB report, had been forwarded to the Chief
\nJustice of India for his concurrence, and that, after consideration of all the
\nmaterial, the Chief Justice of India had concurred with the proposal of the
\nGovernment of India for the appointment of the candidates as indicated in
\nthe proposal.\n<\/p>\n
\tThere is merit in the submissions of the Ld. Solicitor General. It
\nappears that the High Court has acted in the matter as if dealing with an
\nappointment made by an executive officer. It must be remembered that, the
\nCAT is a Tribunal constituted under Article 323A of the Constitution and is
\nexpected to have the same jurisdiction as that of a High Court.
\nConsequently, Parliament has taken great care to enact, vide Sections 6 and
\n7 of the Act, that no appointment of a person possessing the qualifications
\nprescribed in the Act as a Member shall be made, except after consultation
\nwith the Chief Justice of India. The consultation with the Chief Justice of
\nIndia is neither a routine matter, nor an idle formality. It must be
\nremembered that, a member of an Administrative Tribunal like the CAT
\nexercises vast judicial powers, and such member must be ensured  absolute
\njudicial independence, free from influences of any kind likely to interfere
\nwith independent judicial functioning or militate thereagainst. It is for this
\nreason, that a policy decision had been taken by the Government of India
\nthat while considering members of the Bar for appointment to such a post,
\ntheir antecedents have to be verified by the IB. The antecedents would
\ninclude various facts, like association with anti-social elements, unlawful
\norganizations, political affiliations, integrity of conduct and moral
\nuprightness. All these factors have necessarily to be verified before a
\ndecision is taken by the appointing authority to appoint a candidate to a
\nsensitive post like Member of the CAT. In Delhi Administration  v.  Sushil
\nKumar<\/a>  this Court emphasized that even for the appointment of a Constable
\nin Police Services, verification of character and antecedents is one of the
\nimportant criteria to test whether the selected candidate is suitable to a post
\nunder the State. Even if such candidate was found physically fit, had passed
\nthe written test and interview and was provisionally selected, if on account
\nof his antecedent record, the appointing authority found it not desirable to
\nappoint a person of such record as a Constable, the view taken by the
\nappointing authority could not be said to be unwarranted, nor could it be
\ninterdicted in judicial review. These are observations made in the case of a
\nConstable, they would apply  with greater vigour in the case of appointment
\nof a Judicial Member of the CAT. It is for this precise reason, that sub-
\nsection (7) to Section 6 of the Act requires that, the appointment of a
\nMember of the CAT cannot be made “except after consultation with the
\nChief Justice of India”. This consultation should, of course, be an effective
\nconsultation after all necessary papers are laid before the Chief Justice of
\nIndia, and is the virtual guarantee for appointment of absolutely suitable
\ncandidates to the post.\n<\/p>\n
\tUnfortunately, the High Court seems to have proceeded on the footing
\nthat the appointment was being made on its own by the Central Government
\nand that there was an irregular procedure followed by the Secretary by
\ngiving undue importance to the IB report. It was most irregular on the part of
\nthe High Court to have sat in appeal over the issues raised in the IB report
\nand attempted to disprove it by taking affidavits and the oral statement of the
\nAdvocate General at the Bar. We strongly disapprove of  such action on the
\npart of the High Court, particularly when it was pointed out to the High
\nCourt that, along with the proposals made by the Government, the Minister
\nof State had specifically directed for submission of the IB report to the Chief
\nJustice of India for seeking his concurrence, and that this was done. We note
\nwith regret that the High Court virtually sat in appeal, not only over the
\ndecision taken by the Government of India, but also over the decision taken
\nby the Chief Justice of India, which it discarded by a side wind. In our view,
\nthe High Court seriously erred in doing so. Even assuming that the Secretary
\nof the concerned department of the Government of India had not apprised
\nhimself of all necessary facts, one cannot assume or impute to a high
\nconstitutional authority, like the Chief Justice of India, such procedural or
\nsubstantive error. The argument made at the Bar that the Chief Justice of
\nIndia might not have been supplied with the necessary inputs has no merit. If
\nParliament has reposed faith in the Chief Justice of India as the paterfamilias
\nof the judicial hierarchy in this Country, it is not open for anyone to contend
\nthat the Chief Justice of India might have given his concurrence without
\napplication of mind or without calling for the necessary inputs. The
\nargument, to say the least, deserves summary dismissal.\n<\/p>\n
\tIn this matter, the approach adopted by the Jharkhand High Court
\ncommends itself to us. The Jharkhand High Court approached the matter on
\nthe principle that judicial review is not available in such a matter. The
\nJharkhand High Court also rightly pointed out that mere inclusion of a
\ncandidate’s name in the selection list gave him no right, and if there was no
\nright, there could be no occasion to maintain a writ petition for enforcement
\nof a non-existing right.\n<\/p>\n
\tIn Punjab State Electricity Board and Ors.  v.  Malkiat Singh<\/a> ,
\nthis Court reiterated the observations of the Constitution Bench of this Court
\nin Shankarsan Dash  v.  Union of India<\/a>  as under:\n<\/p>\n
“7. It is not correct to say that if a number of vacancies
\nare notified for appointment and adequate number of
\ncandidates are found fit, the successful candidates
\nacquire an indefeasible right to be appointed which
\ncannot be legitimately denied. Ordinarily the notification
\nmerely amounts to an invitation to qualified candidates to
\napply for recruitment and on their selection they do not
\nacquire any right to the post. Unless the relevant
\nrecruitment rules so indicate, the State is under no legal
\nduty to fill up all or any of the vacancies. However, it
\ndoes not mean that the State has the licence of acting in
\nan arbitrary manner. The decision not to fill up the
\nvacancies has to be taken bona fide for appropriate
\nreasons. And if the vacancies or any of them are filled up,
\nthe State is bound to respect the comparative merit of the
\ncandidates, as reflected at the recruitment test, and no
\ndiscrimination can be permitted. This correct position has
\nbeen consistently followed by this Court, and we do not
\nfind any discordant note in the decisions in State of
\nHaryana v. Subhash Chander Marwaha<\/a> , Neelima
\nShangla v. State of Haryana<\/a>  or Jatinder Kumar v.\n<\/p>\n
State of Punjab .”                          (emphasis supplied)<\/p>\n
This, in our view, is the correct approach to be adopted in dealing with a
\nmatter of this nature.\n<\/p>\n
\tIn K. Ashok Reddy  v.  Government of India and Ors.<\/a>  this Court
\nindicated that however wide the power of judicial review under Articles 226
\nor 32 there is a recognised limit, albeit self-recognised, to the exercise of
\nsuch power. This Court reiterated a passage from Craig’s Administrative
\nLaw (Second Edn., p. 291)., vide Paragraph 21, as under:
\n“The traditional position was that the courts would
\ncontrol the existence and extent of prerogative power, but
\nnot the manner of exercise thereof. …. The traditional
\nposition has however now been modified by the decision
\nin the GCHQ case. Their Lordships emphasised that the
\nreviewability of discretionary power should be dependent
\nupon the subject-matter thereof, and not whether its
\nsource was statute or the prerogative. Certain exercises of
\nprerogative power would, because of their subject-matter,
\nbe less justiciable, with Lord Roskill compiling the
\nbroadest list of such forbidden territory ….”\n<\/p>\n
The observations of Lord Roskill, referred to above are from Council of
\nCivil Service Unions  v.  Minister for the Civil Service  (GCHQ case) as
\nunder:\n<\/p>\n
“But I do not think that that right of challenge can be
\nunqualified. It must, I think, depend upon the subject-
\nmatter of the prerogative power which is exercised. Many
\nexamples were given during the argument of prerogative
\npowers which as at present advised I do not think could
\nproperly be made the subject of judicial review.\n<\/p>\n
Prerogative powers such as those relating to the making
\nof treaties, the defence of the realm, the prerogative of
\nmercy, the grant of honours, the dissolution of Parliament
\nand the appointment of ministers as well as others are
\nnot, I think, susceptible to judicial review because their
\nnature and subject-matter are such as not to be amenable
\nto the judicial process.”\n<\/p>\n
\tFinally, this Court emphasised  judicial restraint by citing with
\napproval a passage in De Smith’s Judicial Review of Administrative Action,
\n(vide Paragraph 23) as under:\n<\/p>\n
“Judicial self-restraint was still more marked in cases
\nwhere attempts were made to impugn the exercise of
\ndiscretionary powers by alleging abuse of the discretion
\nitself rather than alleging non-existence of the state of
\naffairs on which the validity of its exercise was
\npredicated. Quite properly, the courts were slow to read
\nimplied limitations into grants of wide discretionary
\npowers which might have to be exercised on the basis of
\nbroad considerations of national policy.”\n<\/p>\n
Based on this reasoning, it was acknowledged that the transfer of a Judge of
\nthe High Court based on the recommendation of the Chief Justice of India
\nwould be immune from judicial review as there is “an inbuilt check against
\narbitrariness and bias indicating absence of need for judicial review on those
\ngrounds. This is how the area of justiciability is reduced   . ”\n<\/p>\n
\tWe, respectfully, reiterate these observations, and expect them to be
\nkept in mind by all courts in this Country invested with the power of judicial
\nreview.\n<\/p>\n
\tThe respondents have relied on the judgments of this Court in R.S.
\nMittal  v.  Union of India<\/a>  in support of their contentions. In our view, the
\nsaid authority hardly advances their case. In the first place, all that the
\nauthority says is that where a Selection Board headed by a sitting Judge of
\nthe Supreme Court had recommended certain candidates for appointment as
\nMembers of the ITAT, it was not open to the Government of India to sit on
\nthe said recommendation without taking action. That was not a case where a
\ndecision taken not to appoint a candidate for good reason was concurred in
\nby the Chief Justice of India.\n<\/p>\n
\tThe judgment in Dr. A.K. Doshi  v.  Union of India<\/a>   on which the
\nrespondents relied is also of no consequence. That was also not a case of
\nconcurrence of the Chief Justice of India and, in any event, this Court had
\nfound a certain amount of mala fides on the part of the Secretary of the
\nDepartment concerned.\n<\/p>\n
\tThe Second Respondent-Ram Kishore Prasad, who argued his own
\ncase adopted the arguments of the First Respondent. In addition, he
\nsubmitted lengthy written arguments and contended that his name was
\ndeleted with mala fide intention for illegally favouring one J.K. Kaushik,
\nwho was down below in the merit list. Apart from the bald allegation, there
\nis no material, whatsoever, presented before the High Court in support of
\nthis mala fide intention, nor did the High Court accept the case.\n<\/p>\n
\tWe have carefully perused the written arguments filed by the Second
\nRespondent. Reliance on the judgment in Sarwan Singh Lamba and Ors.
\nv.  Union of India and Ors.<\/a>  helps in no way. Sarwan Singh (supra) is not
\nan authority which militates against the view we are inclined to take. On the
\nother hand, even this judgment suggests that where the candidates were duly
\nqualified and eligible for the posts against which they were appointed, and
\nall of them had been appointed after consultation with the Chief Justice of
\nIndia, there was no violation of any law or procdure in their appointments.\n<\/p>\n
\tWe consider it unnecessary to refer in detail to a number of authorities
\non which the Second Respondent has relied for, in our view, they are not
\nrelevant.\n<\/p>\n
\tIn the result, we are of the view that the impugned judgment of the
\nHigh Court of Himachal Pradesh is erroneous and needs to be set aside,
\nwhile the judgment and order of the High Court of Jharkhand are right and
\nin consonance with the position in law and need to be upheld. Hence, we
\ndismiss Civil Appeal Nos. 7575-7576\/2004 directed against the judgment
\nand order of the High Court of Jharkhand.\n<\/p>\n
\tWe allow the appeal of the Union of India in Civil Appeal No.
\n6663\/2004 and set aside the impugned judgment of the High Court of
\nHimachal Pradesh in Writ Petition No.812\/2003.\n<\/p>\n
\tThere shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India & Ors vs Kali Dass Batish & Anr on 5 January, 2006 Author: Srikrishna Bench: C.J.I., B.N. Srikrishna, R.V. Raveendran CASE NO.: Appeal (civil) 6663 of 2004 PETITIONER: Union of India & Ors. RESPONDENT: Kali Dass Batish & Anr. DATE OF JUDGMENT: 05\/01\/2006 BENCH: C.J.I. , B.N. Srikrishna […]<\/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-167888","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India & Ors vs Kali Dass Batish & Anr on 5 January, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-of-india-ors-vs-kali-dass-batish-anr-on-5-january-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Of India & Ors vs Kali Dass Batish & Anr on 5 January, 2006 - 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