{"id":244273,"date":"2009-02-18T00:00:00","date_gmt":"2009-02-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/james-k-joseph-vs-government-of-india-on-18-february-2009"},"modified":"2017-04-17T05:25:48","modified_gmt":"2017-04-16T23:55:48","slug":"james-k-joseph-vs-government-of-india-on-18-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/james-k-joseph-vs-government-of-india-on-18-february-2009","title":{"rendered":"James K.Joseph vs Government Of India on 18 February, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
James K.Joseph vs Government Of India on 18 February, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 16915 of 2005(L)\n\n\n1. JAMES K.JOSEPH,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. GOVERNMENT OF INDIA,\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.A.AHAMMED\n\n                For Respondent  :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR\n\nThe Hon'ble MR. Justice P.N.RAVINDRAN\n\n Dated :18\/02\/2009\n\n O R D E R\n                                                                C.R.\n\n                              P.N.Ravindran, J.\n                          ==================\n                        W.P.(C) No.16915 of 2005\n                       =====================\n\n               Dated this the 18th day of February, 2009.\n\n                                JUDGMENT\n<\/pre>\n
      In this Writ Petition, the petitioner seeks a writ in the nature of<\/p>\n
mandamus commanding the first respondent to appoint him as<\/p>\n
Administrative Member in the Central Administrative Tribunal, Ernakulam<\/p>\n
Bench. The brief facts of the case are as follows:\n<\/p>\n
      2. The petitioner was a member of the Indian Audit and Accounts<\/p>\n
Service. During the period from 1988 to 1995 he was the Accountant<\/p>\n
General for the State of Maharashtra, the State of Tamil Nadu and the<\/p>\n
State of Kerala. Later, during the period 1995-1996 he was Joint<\/p>\n
Secretary in the Ministry of Personnel of the Government of India. While<\/p>\n
the petitioner was holding office as Joint Secretary (Establishment) in the<\/p>\n
Ministry of Personnel of the Government of India, he took voluntary<\/p>\n
retirement from service. Thereafter, he had also served as the Managing<\/p>\n
Director of the Kerala State Industrial Development Corporation and the<\/p>\n
Kerala State Road Transport Corporation.\n<\/p>\n
      3. Three vacancies of Administrative Member in the Central<\/p>\n
Administrative Tribunal (hereinafter referred to as the CAT for short)<\/p>\n
WP(C) 16915\/05                     -: 2 :-<\/span><\/p>\n
arose during the period from 1.1.2004 to 30.6.2004. The Government of<\/p>\n
India notified the vacancies and invited applications from eligible<\/p>\n
candidates. The petitioner applied for appointment as Administrative<\/p>\n
Member in the CAT by submitting Ext.P1 application dated 23.8.2004 to<\/p>\n
the Joint Secretary (Administration), Ministry of Personnel, Government of<\/p>\n
India. The petitioner states that the post of Accountant General is a post<\/p>\n
equated to the post of Joint Secretary to Government of India and that<\/p>\n
only civil servants, who are consistent and outstanding in their<\/p>\n
performance are posted as Joint Secretary to Government of India.<\/p>\n
According to him, he had 8 years of experience in the category of Joint<\/p>\n
Secretary and was therefore eligible and qualified to be appointed as<\/p>\n
Administrative Member in the CAT.\n<\/p>\n
      4.   The Selection Committee constituted by the Government of<\/p>\n
India in terms of Order No.A-1013\/54\/90-At dated 15.4.1991 and<\/p>\n
23.4.1991 considered the applications received from various candidates<\/p>\n
and recommended the names of the petitioner and Sri.N.Ramakrishnan,<\/p>\n
IAS   for  appointment    as   Administrative    Members     in the  CAT.<\/p>\n
Sri.N.Ramakrishnan, IAS was appointed as Administrative Member in the<\/p>\n
CAT, Ernakulam Bench. Since the petitioner was not appointed, he filed<\/p>\n
this Writ Petition on 6.6.2005, joining the Government of India<\/p>\n
represented by the Secretary, Ministry of Personnel as the sole<\/p>\n
respondent,    contending   that   as     the  Selection Committee    has<\/p>\n
recommended his name, the action of the Government of India in<\/p>\n
WP(C) 16915\/05                     -: 3 :-<\/span><\/p>\n
denying appointment to him is arbitrary and discriminatory and violative<\/p>\n
of the fundamental rights guaranteed to him under Articles 14 and 16 of<\/p>\n
the Constitution of India. He has further contended that two vacancies<\/p>\n
of Administrative Members existed in the CAT, Ernakulam Bench, that<\/p>\n
Sri.N.Ramakrishnan IAS, one among the two persons recommended by<\/p>\n
the Selection Committee for appointment against the said vacancies was<\/p>\n
appointed and that as per the norms, the Government of India is bound<\/p>\n
to appoint him as Administrative Member in the CAT, Ernakulam Bench.<\/p>\n
The petitioner has in the Writ Petition placed reliance on the decision of<\/p>\n
the High Court of Himachal Pradesh in Kali Das Batish v. Union of India<\/p>\n
& others – 2005(1) SLR 412 and the decisions of the Apex Court in<\/p>\n
Maneka Gandhi v. Union of India<\/a> – AIR 1978 S.C. 597, E.P. Royappa v.<\/p>\n
State of Tamil Nadu<\/a> – 1974 (1) SLR 497 SC and Ramana Dayaram Shetty<\/p>\n
v. The International Airport Authority of India<\/a> – AIR 1979 S.C. 1628<\/p>\n
relied on by the High Court of Himachal Pradesh in support of his<\/p>\n
contentions. In the Writ Petition as filed, the petitioner had prayed for a<\/p>\n
writ in the nature of mandamus commanding the Government of India to<\/p>\n
appoint him as Administrative Member in the CAT, Ernakulam Bench.<\/p>\n
After the Writ Petition was filed, Smt.Sathi Nair, the additional second<\/p>\n
respondent in the Writ Petition was appointed as Vice Chairman of the<\/p>\n
CAT by Ext.R2(a) order dated 22.10.2003 and posted in the Chennai<\/p>\n
Bench. Later, by Ext.R2(b) order dated 3.6.2005, she was transferred to<\/p>\n
the Ernakulam Bench. The petitioner thereupon filed I.A.No.93 of 2006<\/p>\n
WP(C) 16915\/05                       -: 4 :-<\/span><\/p>\n
to implead her as the additional second respondent in the Writ Petition<\/p>\n
and I.A.No.2831 of 2006 to amend the Writ Petition by incorporating a<\/p>\n
prayer to quash the appointment of the additional second respondent as<\/p>\n
Administrative Member of the CAT, Ernakulam Bench. Both the<\/p>\n
applications have been allowed.\n<\/p>\n
      5. The first respondent has filed a counter affidavit denying and<\/p>\n
disputing petitioner’s averment that the Selection Committee had<\/p>\n
recommended him along with Sri.N.Ramakrishnan, IAS for appointment<\/p>\n
as Administrative Member in the CAT, Ernakulam Bench.             The first<\/p>\n
respondent has also raised a contention that the Writ Petition is based on<\/p>\n
surmises and conjectures and that the allegations in the Writ Petition are<\/p>\n
baseless and are not tenable. It is also stated that the Union of India has<\/p>\n
filed an appeal before the Apex Court, challenging the correctness of the<\/p>\n
decision of the High Court of Himachal Pradesh in Kali Das Batish v.<\/p>\n
Union of India & others – 2005(1) SLR 412, that the judgment of the<\/p>\n
High Court of Himachal Pradesh has been stayed by the Apex Court and<\/p>\n
that a final verdict in the matter is awaited.\n<\/p>\n
       6. The petitioner has filed a reply affidavit dated 3.7.2005 and an<\/p>\n
additional reply affidavit dated 16.7.2008. In the reply affidavit dated<\/p>\n
3.7.2005, the petitioner has stated that he had applied to the Central<\/p>\n
Public Information Officer (Administrative Tribunal) to disclose the reason<\/p>\n
for which he was denied appointment, that in Ext.P4 letter dated<\/p>\n
22.11.2005 the Central Public Information Officer (Administrative<\/p>\n
WP(C) 16915\/05                      -: 5 :-<\/span><\/p>\n
Tribunal) informed     him that the Selection Committee had not finally<\/p>\n
recommended him for appointment as Administrative Member in the<\/p>\n
CAT, that as the answer contained in Ext.P4 was vague, he had sent<\/p>\n
Ext.P5 letter dated 23.8.2006 to the Central Public Information Officer<\/p>\n
(Administrative Tribunal) requesting him to give the specific reason for<\/p>\n
denying him appointment, that in Ext.P6 reply dated 8.9.2006, the<\/p>\n
Central Public Information Officer (Administrative Tribunal) informed him<\/p>\n
that he was initially recommended by the Selection Committee for<\/p>\n
appointment as Administrative Member, that after receipt of the<\/p>\n
verification report on his character and antecedents, the matter was<\/p>\n
resubmitted for consideration by the Selection Committee and that as<\/p>\n
the report was adverse to him, the Selection Committee withdrew their<\/p>\n
earlier recommendation to appoint him and that the recommendation of<\/p>\n
the Selection Committee to withdraw their earlier recommendation to<\/p>\n
appoint him as Administrative Member was concurred with by the<\/p>\n
Honourable the Chief Justice of India and approved by the appointing<\/p>\n
authority. The petitioner has further stated in the reply affidavit dated<\/p>\n
3.7.2005 that though he had submitted Ext.P7 appeal against Ext.P6, it<\/p>\n
was turned down by Ext.P8, that he thereupon submitted Ext.P9 appeal<\/p>\n
to the Central Information Commission and that till date, the appeal has<\/p>\n
not been disposed of or the information sought made available to him<\/p>\n
under the Right to Information Act, 2005.\n<\/p>\n
       7. In the additional reply affidavit dated 16.7.2008, the petitioner<\/p>\n
WP(C) 16915\/05                     -: 6 :-<\/span><\/p>\n
has averred that though the report of the Intelligence Bureau was not<\/p>\n
furnished to him, it was furnished to Sri. Ram Kishore Prasad, an<\/p>\n
Advocate practising in the High Court of Jharkhand who was also denied<\/p>\n
appointment as Judicial Member of the CAT. A copy of the letter sent by<\/p>\n
the Central Public Information Officer (Administrative Tribunal) to Sri.Ram<\/p>\n
Kishore Prasad together with the relevant portions of the files is<\/p>\n
produced and marked as Ext.P10. In Ext.P10, it is stated that while the<\/p>\n
petitioner was the Accountant General of Kerala, he had to face an<\/p>\n
enquiry in connection with the recruitment of contingency staff from<\/p>\n
among the relatives of Class IV staff in the office of the Accountant<\/p>\n
General and that as the report of enquiry was not favourable to him, he<\/p>\n
proceeded on voluntary retirement. The petitioner submits that there is<\/p>\n
no truth in the allegations levelled against him in Ext.P10 and that the<\/p>\n
report submitted by the Intelligence Bureau was false.       He relies on<\/p>\n
Ext.P13 letter dated 26.6.2008 sent by the Central Public Information<\/p>\n
Officer in the Office of the Comptroller & Auditor General of India to<\/p>\n
contend that no enquiry whatsoever was held in connection with the<\/p>\n
recruitment of contingency staff in the office of the Accountant General<\/p>\n
of Kerala and that the report submitted by the Intelligence Bureau was<\/p>\n
one engineered by Sri.K.J.Alphonse, IAS, with whom he was not on good<\/p>\n
terms. The petitioner also submits that as the Managing Trustee of<\/p>\n
Resurgent Educational and Charitable Trust he had sacked its Director<\/p>\n
Sri.K.J.Roy, brother of Sri.K.J.Alphonse, IAS for indulging in corrupt<\/p>\n
WP(C) 16915\/05                      -: 7 :-<\/span><\/p>\n
practices and that it infuriated and prompted Sri.K.J.Alphonse to<\/p>\n
engineer the submission of a false report by the Intelligence Bureau.<\/p>\n
       8. I have heard Sri.S.Kalyanam, the learned Senior Advocate<\/p>\n
appearing for the petitioner, Sri.P.Parameswaran Nair, the learned<\/p>\n
Assistant Solicitor General of India appearing for the first respondent and<\/p>\n
Sri.S.Radhakrishnan Nair, the learned counsel appearing for the<\/p>\n
additional second respondent. The learned Senior Advocate appearing<\/p>\n
for the petitioner, relying on Ext.P13 letter submitted that the<\/p>\n
information which led to the petitioner’s disqualification, is not correct<\/p>\n
and    that  the   Intelligence  Bureau     had   at  the    instigation of<\/p>\n
Sri.K.J.Alphonse, IAS, filed a false report as regards the petitioner’s<\/p>\n
character and antecedents on extraneous considerations and without<\/p>\n
verifying the facts, solely with a view to deny him appointment as<\/p>\n
Administrative Member in the CAT. The learned Senior Advocate<\/p>\n
appearing for the petitioner contended that as it is now evident that the<\/p>\n
note submitted by the Joint Secretary did not reflect the true state of<\/p>\n
affairs and as Ext.P13 proves that there was no enquiry against the<\/p>\n
petitioner as reported by the Intelligence Bureau, the Government of<\/p>\n
India is bound to reconsider its earlier decision and to appoint the<\/p>\n
petitioner as Administrative Member of the CAT. The learned Senior<\/p>\n
Advocate contended that it was at the intervention of Sri.K.J.Alphonse,<\/p>\n
IAS, who is named in Ext.P10 itself that a false report about the character<\/p>\n
and antecedents of the petitioner was submitted by the Intelligence<\/p>\n
WP(C) 16915\/05                      -: 8 :-<\/span><\/p>\n
Bureau and that as no enquiry as reported by the Intelligence Bureau was<\/p>\n
ever held against the petitioner, the injustice meted out to the petitioner<\/p>\n
has to be remedied by this Court. He contended that as the decision<\/p>\n
taken by the first respondent not to appoint the petitioner was prompted<\/p>\n
by a mistaken belief as regards the existence of a non-existing fact or<\/p>\n
circumstance, the decision is unreasonable and that such a decision<\/p>\n
which is based on reasons of fact which did not exist has therefore to be<\/p>\n
held to be an abuse of power.      The learned Senior Advocate appearing<\/p>\n
for the petitioner, relying on the decisions of the Apex Court in State of<\/p>\n
Madhya Pradesh and another v. Bhailal Bhai and others – A.I.R. 1964<\/p>\n
S.C. 1006, S.R. Venkataraman v. Union of India and<\/a> another – A.I.R.<\/p>\n
1979 S.C. 49, R.S.Mittal v. Union of India<\/a> – 1995 Supp (2) S.C.C. 230 and<\/p>\n
Dr.A.K. Doshi v. Union of India<\/a> – (2001) 4 S.C.C. 43 contended that as<\/p>\n
the petitioner has demonstrated that the report submitted by the<\/p>\n
Intelligence Bureau was based on a non-existing fact, the decision taken<\/p>\n
by the first respondent not to appoint him, is liable to be set aside and<\/p>\n
the petitioner is entitled to be appointed.\n<\/p>\n
       9. Per contra, the learned Assistant Solicitor General appearing the<\/p>\n
first respondent contended that as the Selection Committee chaired by a<\/p>\n
Sitting Judge of the Honourable the Supreme Court of India had<\/p>\n
withdrawn their earlier recommendation to appoint the petitioner and as<\/p>\n
the Honourable the Chief Justice of India had concurred with the decision<\/p>\n
of the Selection Committee and the appointing authority had accepted it,<\/p>\n
WP(C) 16915\/05                      -: 9 :-<\/span><\/p>\n
the petitioner cannot challenge his non-selection and seek a writ in the<\/p>\n
nature of mandamus commanding the Government of India to appoint<\/p>\n
him as Administrative Member in the CAT. He also relied on the decision<\/p>\n
of the Apex Court in Union of India & others v. Kali Das Batish and<\/a><\/p>\n
another – A.I.R. 2006 S.C. 789 to contend that the decision taken by the<\/p>\n
Selection Committee to withdraw their earlier recommendation and the<\/p>\n
decision taken by the appointing authority not to appoint the petitioner<\/p>\n
are not justiciable and that this Court cannot therefore exercise the<\/p>\n
power of judicial review and issue a writ in the nature of mandamus<\/p>\n
commanding the first respondent to appoint the petitioner as<\/p>\n
Administrative Member in the CAT. The learned counsel appearing for<\/p>\n
the additional second respondent submitted that the second respondent<\/p>\n
has ceased to hold office and that the relief prayed for against the<\/p>\n
second respondent has become infructuous by efflux of time.<\/p>\n
       10. I have considered the submissions made at the Bar by the<\/p>\n
learned counsel appearing on either side.        Shorn off details, the<\/p>\n
petitioner’s contention is that the Selection Committee which had initially<\/p>\n
recommended him for appointment as Administrative Member in the CAT<\/p>\n
withdrew their recommendation on the basis of a false report filed by the<\/p>\n
Intelligence Bureau which was furnished to them by the Joint Secretary<\/p>\n
(AT) along with Ext.P10 note and therefore the petitioner is entitled to be<\/p>\n
appointed as Administrative Member in the CAT. Since the controversy<\/p>\n
centres round the correctness of the statements in Ext.P10, the relevant<\/p>\n
WP(C) 16915\/05                     -: 10 :-<\/span><\/p>\n
portions thereof are extracted below:\n<\/p>\n<\/p>\n
            “Joint Secretary (AT)<\/p>\n
            In its meeting held on 11.10.04, the Selection<\/p>\n
      Committee for Vice-Chairman\/Members of the Central<\/p>\n
      Administrative Tribunal, recommended three persons for<\/p>\n
      appointment as Administrative Member and three persons<\/p>\n
      for appointment as Judicial Member. The Committee also<\/p>\n
      recommended one candidate to be placed on the Waiting<\/p>\n
      List for Administrative Member and one candidate to be<\/p>\n
      placed on the Waiting List for Judicial Member.<\/p>\n<\/blockquote>\n
      2.    After seeking approval of MOS (PP) and concurrence<\/p>\n
      of the Chief Justice of India, proposals for the appointment<\/p>\n
      of three Judicial Members and one Waiting List Judicial<\/p>\n
      Member and for the appointment of two Administrative<\/p>\n
      Members and one Waiting List Administrative Member have<\/p>\n
      been forwarded to the ACC. One case of Administrative<\/p>\n
      Member has been under process because a reference was<\/p>\n
      made to the Intelligence Bureau.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      3.    The IB inquiry process is normally used only in the<\/p>\n
      cases of Members of the Bar who are being considered for<\/p>\n
      posting as Judicial Members. Such IB inquiry is not asked<\/p>\n
      for in the cases of Administrative Members, or of officers<\/p>\n
      of the Judicial Services being considered for Judicial<\/p>\n
      Member because all such persons would have a service<\/p>\n
      record, ACRs etc. The case of Shri James K.Joseph, IA & AS<\/p>\n
      (Retd) was however referred to the IB because Shri. Joseph<\/p>\n
      had taken voluntary retirement from service in May, 1996.<\/p>\n
WP(C) 16915\/05                     -: 11 :-<\/span><\/p>\n
     Given the long period that elapsed from his retirement and<\/p>\n
     the absence of vigilance status, ACR dossier, etc. orders of<\/p>\n
     MOS (PP) were obtained in 18.10.04 and the case referred<\/p>\n
     to IB.\n<\/p><\/blockquote>\n
<\/blockquote>\n
     4.    The IB’s comments have been received in note of<\/p>\n
     17.12.04.   The report makes mixed reading.          There are<\/p>\n
     references to Shri Joseph’s association with the BJP, though<\/p>\n
     having retired from Government service, Shri James K.<\/p>\n
     Joseph is free to take part in political activities. There is<\/p>\n
     also a reference to an ongoing feud between him and<\/p>\n
     Shri.K.J.Alphonse, IAS, on a matter related to the Resurgent<\/p>\n
     Kerala Educational and Charitable Trust, Trivandrum. It<\/p>\n
     should be noted that we have independently received<\/p>\n
     various documents from Shri K.J. Alphonse related to the<\/p>\n
     same matter.     It should also be noted that while the<\/p>\n
     complaints against Shri.James K.Joseph are serious, Shri.<\/p>\n
     K.J. Alphonse himself is highly controversial and no<\/p>\n
     judgment can be passed in the matter without a better<\/p>\n
     knowledge of the facts.\n<\/p><\/blockquote>\n
<\/blockquote>\n
     5. There is yet another issue mentioned in the IB report<\/p>\n
     which is probably more serious. It is stated that during his<\/p>\n
     posting as Accountant General, Kerala, Shri. Joseph had<\/p>\n
     faced an inquiry in connection with recruitment of some<\/p>\n
     contingency staff from amongst relatives of Class IV staff of<\/p>\n
     the AG Office. The IB report clearly states that the inquiry<\/p>\n
     report in the matter was unfavourable and that Shri.Joseph<\/p>\n
     had consequently proceeded on voluntary retirement.<\/p>\n<\/blockquote>\n
           6. In my view, this is a fairly serious complaint. We do<\/p>\n
WP(C) 16915\/05                     -: 12 :-<\/span><\/p>\n
      not have details of inquiry report with us, but I do not also<\/p>\n
      think it is worthwhile to make inquiries from the AG’s office<\/p>\n
      at this stage.   Given the information revealed by the IB<\/p>\n
      report, it seems fairly clear that Shri.James     K. Joseph’s<\/p>\n
      general reputation is somewhat controversial.         In the<\/p>\n
      circumstances, it is recommended that we do not accept<\/p>\n
      the recommendation of the Selection Committee. It should<\/p>\n
      be made clear that the facts brought out by IB were not<\/p>\n
      brought to the attention of the Selection Committee which<\/p>\n
      had before it only a simple CV of Shri. James K. Joseph.<\/p>\n<\/blockquote>\n
            7. We may accordingly seek orders of MOS(PP) to<\/p>\n
      reject the recommendation of the Selection Committee.<\/p>\n
      Since the proposal to appoint the two other Admn. Member<\/p>\n
      and a Waiting List candidate is already in ACC, there should<\/p>\n
      be no difficulty about filling the vacancy with the Waiting<\/p>\n
      List candidate.”<\/p><\/blockquote>\n
      11. The pleadings and the materials on record disclose that the<\/p>\n
Selection Committee that met on 11.10.2004 had recommended the<\/p>\n
name of the petitioner for appointment as Administrative Member of the<\/p>\n
CAT, that as the petitioner had retired from service in May, 1996 his case<\/p>\n
was referred to the intelligence Bureau for verification of character and<\/p>\n
antecedents and that the Intelligence Bureau had in its note dated<\/p>\n
17.12.2004 reported that while the petitioner was the Accountant<\/p>\n
General of Kerala, he had faced an enquiry in connection with the<\/p>\n
recruitment of contingency staff from amongst the relatives of Class IV<\/p>\n
WP(C) 16915\/05                     -: 13 :-<\/span><\/p>\n
staff of the Accountant General’s office, that the report of enquiry was<\/p>\n
unfavourable to the petitioner and consequently he proceeded on<\/p>\n
voluntary retirement. After the report of the Intelligence Bureau was<\/p>\n
received, the Joint Secretary (AT) prepared the note evidenced by Ext.P10<\/p>\n
which I have extracted above on 24.12.2004. Thereafter, as can be seen<\/p>\n
from Ext.P6, the file was placed before the Selection Committee as<\/p>\n
directed by the Honourable the Chief Justice of India and in view of the<\/p>\n
report submitted by the Intelligence Bureau, the Selection Committee<\/p>\n
withdrew their earlier recommendation to appoint the petitioner as<\/p>\n
Administrative Member of the CAT.          Ext.P6 also discloses that the<\/p>\n
recommendation of the Selection Committee to withdraw their earlier<\/p>\n
recommendation to appoint the petitioner as Administrative Member in<\/p>\n
the CAT, was concurred with by the Honourable the Chief Justice of India<\/p>\n
and approved by the appointing authority. It is in this background that<\/p>\n
this Court has to consider whether the petitioner is entitled to seek a<\/p>\n
writ in the nature of mandamus commanding the first respondent to<\/p>\n
appoint him as Administrative Member in the CAT.\n<\/p>\n
       12. I shall now refer to the decisions of the Apex Court relied on<\/p>\n
by the learned Senior Advocate appearing for the petitioner. In State of<\/p>\n
Madhya Pradesh and another v. Bhailal Bhai and others (supra) a<\/p>\n
Constitution Bench of the Apex Court considered the question whether<\/p>\n
the High Court has power under Article 226 of the Constitution to order<\/p>\n
refund of tax which was illegally collected. It was held that if a right has<\/p>\n
WP(C) 16915\/05                     -: 14 :-<\/span><\/p>\n
been infringed – whether fundamental right or statutory right – and the<\/p>\n
aggrieved party comes to the court for enforcement of the right, it will<\/p>\n
not be giving complete relief if the court merely declares the existence of<\/p>\n
such right or the fact that the existing right has been infringed. The<\/p>\n
Apex Court also held that where there has been only a threat to infringe<\/p>\n
the right, an order commanding the Government or other statutory<\/p>\n
authority not to take the action contemplated would be sufficient and<\/p>\n
that where the right has been actually invaded, the High Courts have the<\/p>\n
power to give consequential reliefs for the purpose of enforcement of<\/p>\n
fundamental rights and statutory rights. In S.R.Venkataraman v. Union<\/p>\n
of India and<\/a> another (supra), the Apex Court was dealing with the case<\/p>\n
of a public servant ordered to be retired prematurely in public interest.<\/p>\n
Taking note of the admitted fact that there was nothing on record which<\/p>\n
would justify an order prematurely retiring the appellant from service,<\/p>\n
the Apex Court held that when a public body is prompted by a mistaken<\/p>\n
belief in the existence of a non-existing fact or circumstance, there would<\/p>\n
be an error of fact and that what is done under a mistaken belief, might<\/p>\n
almost be said to have been done in bad faith.         It was held that an<\/p>\n
administrative order which is based on reasons of fact which do not exist<\/p>\n
must therefore be held to be infected with an abuse of power.<\/p>\n
      13. In R.S. Mittal v. Union of India<\/a> (supra), the Apex Court while<\/p>\n
considering the question whether the Appointments Committee of the<\/p>\n
Cabinet was entitled to deviate from the recommendation made by the<\/p>\n
WP(C) 16915\/05                    -: 15 :-<\/span><\/p>\n
Selection Board, held that though a person on the select panel has no<\/p>\n
vested right to be appointed to the post for which he has been selected,<\/p>\n
the appointing authority cannot ignore the select panel or act on its<\/p>\n
whims.    It was held that when a person has been selected by the<\/p>\n
Selection Board and there is a vacancy which can be offered to him,<\/p>\n
keeping in view his merit position, then there is no justification to ignore<\/p>\n
him for appointment and that there has to be a justifiable reason to<\/p>\n
decline to appoint a person, who is on the select panel. On the facts of<\/p>\n
the case, the Apex Court held that no reason whatsoever, not to talk of a<\/p>\n
justifiable reason has been given as to why the appointments were not<\/p>\n
offered to the candidates recommended by the Selection Board and<\/p>\n
accordingly directed the recommendations of the Selection Board to be<\/p>\n
placed before the Appointments Committee of the Cabinet. In<\/p>\n
Dr.A.K.Doshi v. Union of India<\/a> (supra), the Apex Court considered the<\/p>\n
question whether it was open to the Appointments Committee of the<\/p>\n
Cabinet to rely on materials which had not been placed before the<\/p>\n
Selection Committee to deny appointments to candidates recommended<\/p>\n
by the Selection Committee. The Apex Court held that after the Selection<\/p>\n
Committee which makes the selection recommends one or more names<\/p>\n
for appointment, the recommendation along with the materials<\/p>\n
considered by the Selection Committee should be placed before the<\/p>\n
Appointments Committee without further addition or alteration and that<\/p>\n
if in an exceptional case the Appointments Committee feels that certain<\/p>\n
WP(C) 16915\/05                     -: 16 :-<\/span><\/p>\n
material which was not available to be considered by the Selection<\/p>\n
Committee has come into existence in the meantime and the material is<\/p>\n
relevant for the purpose of appointment, then the matter should be<\/p>\n
placed before the Appointments Committee with the additional material<\/p>\n
for its consideration. The Apex Court held that the action of the<\/p>\n
Appointments Committee in not appointing candidates recommended by<\/p>\n
the Selection Committee and in appointing a person in the reserve panel,<\/p>\n
amounted to interference with the process of selection and that the<\/p>\n
Appointments Committee has attempted to set at naught the selection.<\/p>\n
       14. An issue similar to the one involved in the case on hand arose<\/p>\n
before the Apex Court in Union of India and others v. Kali Das Batish<\/p>\n
and<\/a> another (supra), referred to and relied on by the learned Assistant<\/p>\n
Solicitor General appearing for the first respondent. The Government of<\/p>\n
India had invited applications to fill up 7 vacancies of Judicial Members<\/p>\n
and 3 vacancies of Administrative Members in the CAT for the period<\/p>\n
from 1.7.2001 to 31.12.2001. Sri.Kali Das Batish and Sri.Ram Kishore<\/p>\n
Prasad, two practicing    Advocates applied for appointment as Judicial<\/p>\n
Members in the CAT. The Selection Committee chaired by a Sitting Judge<\/p>\n
of the Apex Court that met on 18.7.2001, considered the names of 121<\/p>\n
persons for selection to the aforesaid vacancies and recommended the<\/p>\n
names of 7 persons including Sri.Kali Das Batish and Sri.Ram Kishore<\/p>\n
Prasad for appointment as Judicial Members of the CAT. In accordance<\/p>\n
WP(C) 16915\/05                     -: 17 :-<\/span><\/p>\n
with the established procedure, their antecedents were got verified<\/p>\n
through the Intelligence Bureau. The report of the Intelligence Bureau<\/p>\n
was not favourable to Sri.Kali Das Batish and Sri.Ram Kishore Prasad and<\/p>\n
therefore the Government of India decided that it would not be desirable<\/p>\n
to appoint them as Judicial Members of the CAT. The Government also<\/p>\n
proposed to appoint two among the candidates in the waiting list in the<\/p>\n
place of Sri.Kali Das Batish and Sri.Ram Kishore Prasad. The concurrence<\/p>\n
of the Honourable the Chief Justice of India was thereupon sought. The<\/p>\n
Honourable the Chief Justice of India concurred with the proposal of the<\/p>\n
Government of India and therefore, Sri.Kali Das Batish and Sri.Ram<\/p>\n
Kishore Prasad were not appointed.\n<\/p>\n
      15. Sri.Ram Kishore Prasad thereupon filed a Writ Petition in the<\/p>\n
High Court of Jharkhand challenging the action of the Union of India in<\/p>\n
not appointing him as Judicial Member and also sought a direction to<\/p>\n
the Central Government to appoint him as he was included in the select<\/p>\n
list. The High Court of Jharkhand held that the mere inclusion of the<\/p>\n
name of a candidate in the select list does not confer on him a right to<\/p>\n
be appointed to the post and that in the matter of appointment to a<\/p>\n
Judicial post, the appointing authority had not only the right, but also a<\/p>\n
duty to verify the character and antecedents of the candidates on the<\/p>\n
basis of the report and inputs from the Intelligence Bureau and that it<\/p>\n
was open to the appointing authority not to appoint any person included<\/p>\n
in the list prepared by the Selection Committee.      The High Court of<\/p>\n
WP(C) 16915\/05                     -: 18 :-<\/span><\/p>\n
Jharkhand also held that exclusion of the name of Sri.Ram Kishore Prasad<\/p>\n
on the basis of the report of the Intelligence Bureau, which was made<\/p>\n
available to the Honourable the Chief Justice of India and whose<\/p>\n
concurrence to the proposal was obtained by the Government of India<\/p>\n
after apprising the Honourable the Chief Justice of India of all the<\/p>\n
relevant facts, left no scope for judicial review. The Writ Petition was<\/p>\n
accordingly dismissed. Though Sri.Ram Kishore Prasad attempted to seek<\/p>\n
a review of the judgment, the review petition was also dismissed.         He<\/p>\n
thereupon moved the Apex Court in appeal.\n<\/p>\n
       16. Sri.Kali Das Batish had also likewise filed a Writ Petition in the<\/p>\n
High Court of Himachal Pradesh. The High Court of Himachal Pradesh<\/p>\n
proceeded to examine the correctness of the report submitted by the<\/p>\n
Intelligence Bureau and held that the report submitted by the Intelligence<\/p>\n
Bureau as regards his performance as a Lawyer, was without substance.<\/p>\n
The High Court of Himachal Pradesh held that as the ground on which<\/p>\n
the petitioner was denied appointment has been proved to be non-est, he<\/p>\n
is entitled to have his case considered afresh without reference to the<\/p>\n
report submitted by the Intelligence Bureau.         The Writ Petition was<\/p>\n
accordingly allowed and the Government of India was directed to<\/p>\n
consider his case afresh and to appoint him against vacancies if any<\/p>\n
available or against the next arising vacancy [vide Kali Das Batish v.<\/p>\n
Union of India and others – 2005(1) SLR 412.] The Union of India<\/p>\n
challenged the judgment of the High Court of Himachal Pradesh in the<\/p>\n
WP(C) 16915\/05                    -: 19 :-<\/span><\/p>\n
Apex Court joining Sri.Kali Das Batish and Sri.Ram Kishore Prasad as<\/p>\n
respondents in the appeal. The appeals filed by Sri.Ram Kishore Prasad<\/p>\n
and Union of India were heard together by the Apex Court. It was argued<\/p>\n
on behalf of Union of India before the Apex Court that the High Court of<\/p>\n
Himachal Pradesh exceeded its power of judicial review and erred in<\/p>\n
interfering with the decision of the Union of India and the appointing<\/p>\n
authority not to appoint Sri.Kali Das Batish as Judicial Member of the<\/p>\n
CAT. It was argued that the High Court of Himachal Pradesh failed to<\/p>\n
bear in mind the fact that the proposal to appoint the candidates along<\/p>\n
with all the relevant papers including the report of the Intelligence<\/p>\n
Bureau had been forwarded to the Honourable the Chief Justice of India<\/p>\n
for his concurrence and that the Honourable the Chief Justice of India<\/p>\n
had after consideration of all the materials concurred with the proposal<\/p>\n
of the Government of India to appoint candidates other than Sri.Kali Das<\/p>\n
Batish and Sri.Ram Kishore Prasad as indicated in the proposal submitted<\/p>\n
by the Government of India. Accepting the contentions of the Union of<\/p>\n
India, the Apex Court in Union of India and others v. Kali Das Batish<\/p>\n
and<\/a> another (supra) held as follows:\n<\/p>\n
            “10. The Union of India has challenged the judgment of<\/p>\n
      the High Court of Himachal Pradesh in CWP No.812\/2003 by<\/p>\n
      its Civil Appeal No.6663\/2004 in which K.D. Batish and Ram<\/p>\n
      Kishore Prasad are the First and Second Respondents,<\/p>\n
      respectively. Ram Kishore Prasad was a Respondent in the<\/p>\n
      writ petition before the Himachal Pradesh High Court and,<\/p>\n
WP(C) 16915\/05                   -: 20 :-<\/span><\/p>\n
    therefore, appears to have been made a Respondent in this<\/p>\n
    case also.\n<\/p><\/blockquote>\n
           11. The learned Solicitor General made a frontal attack<\/p>\n
    on the judgment of the High Court of Himachal Pradesh<\/p>\n
    contending that the High Court has far exceeded its powers<\/p>\n
    of judicial review and grievously erred in interfering with the<\/p>\n
    decision of the Union of India and the appointing authority<\/p>\n
    not to appoint the First and Seconds Respondents to the<\/p>\n
    posts of Judicial Members of the CAT, after obtaining the<\/p>\n
    concurrence of the Chief Justice of India. He also contends<\/p>\n
    that the High Court erred in adopting the extraordinary<\/p>\n
    procedure of calling for an affidavit of the Registrar General<\/p>\n
    to be filed on the basis of instructions obtained from Justice<\/p>\n
    Khurana of the same High Court to be used as substantive<\/p>\n
    evidence in the decision of the said writ petition, though the<\/p>\n
    High Court itself was aware that it was an “unusual<\/p>\n
    procedure.”\n<\/p><\/blockquote>\n
            12. The learned Solicitor General further contends<\/p>\n
     that the High Court singularly failed to keep in mind the<\/p>\n
     scope of Sections 6 and 7 of the Act, that along with the<\/p>\n
     proposal for appointment of the candidates all the relevant<\/p>\n
     papers, including the IB report, had been forwarded to the<\/p>\n
     Chief Justice of India for his concurrence, and that, after<\/p>\n
     consideration of all the material, the Chief Justice of India<\/p>\n
     had concurred with the proposal of the Government of<\/p>\n
     India for the appointment of the candidates as indicated in<\/p>\n
     the proposal.\n<\/p><\/blockquote>\n
            13. There is merit in the submissions of the Ld.<\/p>\n
     Solicitor General. It appears that the High Court has acted<\/p>\n
     in the matter as if dealing with an appointment made by an<\/p>\n
     executive officer. It must be remembered that, the CAT is a<\/p>\n
WP(C) 16915\/05                    -: 21 :-<\/span><\/p>\n
     Tribunal    constituted    under     Article 323-A   of   the<\/p>\n
     Constitution and is expected to have the same jurisdiction<\/p>\n
     as that of    a High Court.    Consequently, Parliament has<\/p>\n
     taken great care to enact, vide Sections 6 and 7 of the Act,<\/p>\n
     that   no   appointment     of   a   person  possessing   the<\/p>\n
     qualifications prescribed in the Act as a Member shall be<\/p>\n
     made, except after consultation with the Chief Justice of<\/p>\n
     India. The consultation with the Chief Justice of India is<\/p>\n
     neither a routine matter, nor an idle formality. It must be<\/p>\n
     remembered that, a member of an Administrative Tribunal<\/p>\n
     like the CAT exercises vast judicial powers, and such<\/p>\n
     member must be ensured absolute judicial independence,<\/p>\n
     free from influences of any kind likely to interfere with<\/p>\n
     independent judicial functioning or militate thereagainst. It<\/p>\n
     is for this reason, that a policy decision had been taken by<\/p>\n
     the Government of India that while considering Members of<\/p>\n
     the Bar for appointment to such a post, their antecedents<\/p>\n
     have to be verified by the IB.        The antecedents would<\/p>\n
     include various facts, like association with anti-social<\/p>\n
     elements, unlawful organizations, political affiliations,<\/p>\n
     integrity of conduct and moral uprightness.        All these<\/p>\n
     factors have necessarily to be verified before a decision is<\/p>\n
     taken by the appointing authority to appoint a candidate to<\/p>\n
     a sensitive post like Member of the CAT.           In Delhi<\/p>\n
     Administration v. Sushil Kumar<\/a> this Court emphasized<\/p>\n
     that even for the appointment of a Constable in Police<\/p>\n
     Services, verification of character and antecedents is one of<\/p>\n
     the important criteria to test whether the selected<\/p>\n
     candidate is suitable to a post under the State. Even if such<\/p>\n
     candidate was found physically fit, had passed the written<\/p>\n
     test and interview and was provisionally selected, if on<\/p>\n
WP(C) 16915\/05                     -: 22 :-<\/span><\/p>\n
     account of his antecedent record, the appointing authority<\/p>\n
     found it not desirable to appoint a person of such record as<\/p>\n
     a Constable, the view taken by the appointing authority<\/p>\n
     could not be said to be unwarranted, nor could it be<\/p>\n
     interdicted in judicial review. These are observations made<\/p>\n
     in the case of a Constable, they would apply with greater<\/p>\n
     vigour in the case of appointment of a Judicial Member of<\/p>\n
     the CAT. It is for this precise reason, that sub-section (7)<\/p>\n
     to Section 6 of the Act requires that, the appointment of a<\/p>\n
     Member of the CAT cannot be made “except after<\/p>\n
     consultation with the Chief Justice of India”.            This<\/p>\n
     consultation should, of course, be an effective consultation<\/p>\n
     after all necessary papers are laid before the Chief Justice<\/p>\n
     of India, and is the virtual guarantee for appointment of<\/p>\n
     absolutely suitable candidates to the post.<\/p>\n<\/blockquote>\n
            14. Unfortunately, the High Court seems to have<\/p>\n
     proceeded on the footing that the appointment was being<\/p>\n
     made on its own by the Central Government and that there<\/p>\n
     was an irregular procedure followed by the Secretary by<\/p>\n
     giving undue importance to the IB report.          It was most<\/p>\n
     irregular on the part of the High Court to have sat in appeal<\/p>\n
     over the issues raised in the IB report and attempted to<\/p>\n
     disprove it by taking affidavits and the oral statement of the<\/p>\n
     Advocate General at the Bar. We strongly disapprove of such<\/p>\n
     action on the part of the High Court, particularly when it was<\/p>\n
     pointed out to the High Court that, along with the proposals<\/p>\n
     made by the Government, the Minister of State had<\/p>\n
     specifically directed for submission of the IB report to the<\/p>\n
     Chief Justice of India for seeking his concurrence, and that<\/p>\n
     this was done.     We note with regret that the High Court<\/p>\n
     virtually sat in appeal, not only over the decision taken by the<\/p>\n
WP(C) 16915\/05                    -: 23 :-<\/span><\/p>\n
     Government of India, but also over the decision taken by the<\/p>\n
     Chief Justice of India, which it discarded by a side wind. In<\/p>\n
     our view, the High Court seriously erred in doing so. Even<\/p>\n
     assuming that the Secretary of the concerned department of<\/p>\n
     the Government of India had not apprised himself of all<\/p>\n
     necessary facts, one cannot assume or impute to a high<\/p>\n
     constitutional authority, like the Chief Justice of India, such<\/p>\n
     procedural or substantive error. The argument made at the<\/p>\n
     Bar that the Chief Justice of India might not have been<\/p>\n
     supplied with the necessary inputs has no merit.                If<\/p>\n
     Parliament has reposed faith in the Chief Justice of India as<\/p>\n
     the paterfamilias of the judicial hierarchy in this Country, it is<\/p>\n
     not open for anyone to contend that the Chief Justice of<\/p>\n
     India might have given his concurrence without application of<\/p>\n
     mind or without calling for the necessary inputs.            The<\/p>\n
     argument, to say the least, deserves summary dismissal.”<\/p><\/blockquote>\n
     17. In Union of India and others v. Kali Das Batish and<\/a> another<\/p>\n
(supra) the Apex Court held that it is not open to the High Court to sit in<\/p>\n
appeal not only over the decision of the Government of India, but also<\/p>\n
the decision taken by the Honourable the Chief Justice of India by<\/p>\n
attempting to disprove the issues raised by the Intelligence Bureau. The<\/p>\n
Apex Court approved the reasoning of the High Court of Jharkhand that<\/p>\n
when the decision to appoint or not to appoint a candidate as Judicial<\/p>\n
Member of the CAT has been made with the concurrence of the<\/p>\n
Honourable the Chief Justice of India, there is no scope for judicial<\/p>\n
review. The Apex Court also cautioned that the courts exercising the<\/p>\n
WP(C) 16915\/05                      -: 24 :-<\/span><\/p>\n
power of judicial review shall keep in mind the recognised limit, albeit<\/p>\n
self-recognised, to the exercise of such power, which was highlighted by<\/p>\n
the Apex Court in K.Ashok Reddy v. The Government of India and<\/p>\n
others<\/a> – (1994) 2 SCC 303. In K.Ashok Reddy v. The Government of<\/p>\n
India and others<\/a> (supra) the Apex Court accepted the principle that<\/p>\n
reviewability of discretionary power would depend on the subject matter<\/p>\n
and held that the transfer of a Judge of the High Court based on the<\/p>\n
recommendation of the Chief Justice of India would be immune from<\/p>\n
judicial review as there is “an inbuilt check against arbitrariness and bias<\/p>\n
indicating absence of need for judicial review on those grounds.” The<\/p>\n
Apex Court in Union of India and others v. Kali Das Batish and<\/a> another<\/p>\n
(supra) also held that the mere inclusion of the name of a candidate in<\/p>\n
the select list gives him no right to be appointed and that if there was no<\/p>\n
right, there could be no occasion to maintain a writ petition for the<\/p>\n
enforcement of a non-existing right.\n<\/p>\n
      18. The issue raised in the case on hand is in my opinion, covered<\/p>\n
against the petitioner by the decision of the Apex Court in Union of<\/p>\n
India and others v. Kali Das Batish and<\/a> another (supra). The pleadings<\/p>\n
and the materials in the case on hand disclose that though the Selection<\/p>\n
Committee had initially recommended the name of the petitioner for<\/p>\n
appointment as Administrative Member of the CAT, after the report from<\/p>\n
the Intelligence Bureau which contained adverse remarks about him was<\/p>\n
received, the matter was placed before the Honourable the Chief Justice<\/p>\n
WP(C) 16915\/05                    -: 25 :-<\/span><\/p>\n
of India, who in turn, placed the matter before the Selection Committee.<\/p>\n
The Selection Committee considered the matter and decided to withdraw<\/p>\n
their earlier recommendation. The Honourable the Chief Justice of India<\/p>\n
concurred with the decision of the Selection Committee to withdraw their<\/p>\n
earlier recommendation and the appointing authority also concurred with<\/p>\n
it.  The   petitioner  was   therefore    not  appointed   though    Sri.N.<\/p>\n
Ramakrishnan, IAS whose name was also recommended by the Selection<\/p>\n
Committee was appointed as Administrative Member in the CAT,<\/p>\n
Ernakulam Bench.      The attempt made by the petitioner in this Writ<\/p>\n
Petition is to demonstrate that the report submitted by the Intelligence<\/p>\n
Bureau was not factually correct and that it was engineered by<\/p>\n
Sri.K.J.Alphonse with whom he was not on good terms. The petitioner<\/p>\n
relies on Ext.P13 to contend that no enquiry was held against him as<\/p>\n
reported by the Intelligence Bureau while he was the Accountant General<\/p>\n
of Kerala. The Apex Court has in Union of India and others v. Kali Das<\/p>\n
Batish and<\/a> another (supra) held that the High Court exercising the<\/p>\n
power of judicial review cannot sit in appeal over the report submitted by<\/p>\n
the Intelligence Bureau, attempt to disprove it and in that process sit in<\/p>\n
appeal over the decision taken by the Honourable the Chief Justice of<\/p>\n
India as regards the choice of candidates selected for appointment as<\/p>\n
Judicial Members of the CAT. Therefore, this Court cannot entertain the<\/p>\n
petitioner’s plea and hold as requested by him that as the Selection<\/p>\n
Committee had withdrawn their earlier recommendation based on the<\/p>\n
WP(C) 16915\/05                     -: 26 :-<\/span><\/p>\n
report submitted by the Intelligence Bureau, which the petitioner<\/p>\n
attempts to prove was false, the decision taken by the Government of<\/p>\n
India not to appoint him is arbitrary and is liable to be invalidated.<\/p>\n
      19. The Selection Committee headed by the Honourable Mr. Justice<\/p>\n
K.G.Balakrishnan, presently the Chief Justice of India, had after the report<\/p>\n
of the Intelligence Bureau on the petitioner’s character and antecedents<\/p>\n
was placed before them along with the relevant files, reconsidered the<\/p>\n
matter and decided to withdraw their earlier recommendation to appoint<\/p>\n
him as Administrative Member of the CAT. The Honourable the Chief<\/p>\n
Justice of India concurred with the decision of the Selection Committee<\/p>\n
and this was accepted by the appointing authority also. As held by the<\/p>\n
Apex Court in Union of India and others v. Kali Das Batish and<\/a> another<\/p>\n
(supra) the consultation with the Honourable the Chief Justice of India<\/p>\n
mandated in Sections 6 and 7 of the Administrative Tribunals Act, 1985<\/p>\n
is not an empty formality, but one intended to ensure that only suitable<\/p>\n
candidates are selected for appointment as Members of the CAT. As held<\/p>\n
by the Apex Court in K. Ashok Reddy v. Government of India and<\/p>\n
others<\/a> (supra) the consultation with the Honourable the Chief Justice of<\/p>\n
India is “an inbuilt check against arbitrariness and bias,” indicating the<\/p>\n
absence of need for judicial review on those grounds. Further, the Apex<\/p>\n
Court has in National Institute of Mental Health and Neuro Sciences v.<\/p>\n
Dr. K.Kalyana Raman<\/a> – A.I.R. 1992 S.C. 1806 held that the function of a<\/p>\n
WP(C) 16915\/05                    -: 27 :-<\/span><\/p>\n
Selection Committee is neither judicial nor adjudicatory, but purely<\/p>\n
administrative and that they are not required to record reasons for the<\/p>\n
selection or non selection of a candidate in the absence of any rule or<\/p>\n
regulation requiring them to do so. No provision requiring the Selection<\/p>\n
Committee to record reasons for not selecting candidates seeking<\/p>\n
appointment as Members of the CAT was brought to my notice.<\/p>\n
Therefore, the Selection Committee was not bound to record reasons for<\/p>\n
not selecting the petitioner, though they had before the report of the<\/p>\n
Intelligence  Bureau   was   received,    recommended    his   name     for<\/p>\n
appointment as Administrative Member. This Court exercising the power<\/p>\n
of judicial review cannot therefore, as held by the Apex Court, sit in<\/p>\n
appeal over the decision of the Selection Committee or of the<\/p>\n
Honourable the Chief Justice of India who approved it, substitute its own<\/p>\n
decision and invalidate the decision of the Government of India. It is also<\/p>\n
now well settled by a series of decisions of the Apex Court including the<\/p>\n
decision in Union of India and others v. Kali Das Batish and<\/a> another<\/p>\n
(supra) that the mere inclusion of a candidate in the select list does not<\/p>\n
confer on him a right to be appointed and that if there was no right,<\/p>\n
there could be no occasion to maintain a writ petition for the<\/p>\n
enforcement of a non-existing right. Therefore, the petitioner cannot, in<\/p>\n
my considered opinion, assail the decision taken by the Government of<\/p>\n
India not to appoint him as Administrative Member of the CAT.<\/p>\n
       For the reasons stated above, I hold that the petitioner is not<\/p>\n
WP(C) 16915\/05                     -: 28 :-<\/span><\/p>\n
entitled to the reliefs prayed for in this Writ Petition. The Writ Petition<\/p>\n
fails and is accordingly dismissed. No costs.\n<\/p>\n<\/p>\n
                                                 P.N.Ravindran,
\n                                                 Judge.\n<\/p>\n
ess 15\/2<\/p>\n
WP(C) 16915\/05                    -: 29 :-<\/span><\/p>\n
The Apex Court has in Union of India and others v. Kali Das Batish and<\/a><\/p>\n
another (supra) held that this Court exercising the power of judicial<\/p>\n
review cannot sit in appeal over the report submitted by the Intelligence<\/p>\n
Bureau, attempt to disprove it and proceed on the basis that the<\/p>\n
Honourable the Chief Justice of India or the Chairman and Members of<\/p>\n
the Selection Committee would not have applied their mind before taking<\/p>\n
the decision not to appoint the petitioner. Further, as held by the Apex<\/p>\n
Court in a series of decisions, the mere inclusion of a candidate in the<\/p>\n
select list does not confer on him a right to be appointed.          As the<\/p>\n
selection of the petitioner was subject to verification of his character and<\/p>\n
antecedents and as the Selection Committee had on receipt of the report<\/p>\n
of the Intelligence Bureau and the notings in Ext.P10 file, decided to<\/p>\n
withdraw their earlier recommendation, the petitioner, who did not have<\/p>\n
a right to be appointed cannot in my opinion, question the decision<\/p>\n
taken by the competent authorities not to appoint him as Judicial<\/p>\n
Member of the CAT. The petitioner does not, in my opinion, have the<\/p>\n
right to seek a writ in the nature of mandamus commanding the first<\/p>\n
respondent to appoint him as Administrative Member of the CAT.<\/p>\n
Add see para 14<\/p>\n
WP(C) 16915\/05    -: 30 :-<\/span><\/p>\n
Add para 17<\/p>\n
Add page 25<\/p>\n
WP(C) 16915\/05                  -: 31 :-<\/span><\/p>\n
Add see before para 12<\/p>\n
The learned Senior Advocate appearing for the petitioner contends that<\/p>\n
the Joint Secretary had made the notings in the file referred to above to<\/p>\n
the effect that the complaint that the petitioner had faced with an<\/p>\n
WP(C) 16915\/05                      -: 32 :-<\/span><\/p>\n
enquiry in connection with the recruitment of contingency staff from<\/p>\n
among the relatives of Class IV staff of the Accountant General’s office<\/p>\n
while he was Accountant General of Kerala and that the enquiry report<\/p>\n
was unfavourable to the petitioner and therefore he proceeded on<\/p>\n
voluntary retirement is a serious complaint and that though the details of<\/p>\n
the report are not available, it is not worthwhile to make enquiries from<\/p>\n
the Accountant General’s office at this stage and that from the IB report,<\/p>\n
it seems fairly clear that the petitioner’s general reputation is somewhat<\/p>\n
controversial. The learned Senior Advocate for the petitioner submits<\/p>\n
that it was the said adverse report which persuaded the Selection<\/p>\n
Committee to reconsider its earlier decision and that as it has been<\/p>\n
established that there was no enquiry at all, the Government of India is<\/p>\n
bound to reconsider its stand and place the matter before the Selection<\/p>\n
Committee afresh. The learned counsel appearing for the respondents<\/p>\n
on the other hand contend relying on the decision of the Apex Court in<\/p>\n
Union of India and others v. Kali Dass Batish and<\/a> another (supra) that<\/p>\n
the decision of the Selection Committee is not justifiable and this Court<\/p>\n
cannot exercise a judicial review and issue a writ in the nature of<\/p>\n
mandamus commanding the Government of India to reconsider its<\/p>\n
decision dehors the report of the IB.\n<\/p>\n
      7. From the pleadings and materials on record, it is evident that<\/p>\n
the Joint Secretary to Government of India rejected the recommendation<\/p>\n
of the Selection Committee based on the report of the IB that any enquiry<\/p>\n
WP(C) 16915\/05                      -: 33 :-<\/span><\/p>\n
held against the petitioner while he was the Accountant General of Kerala<\/p>\n
that enquiry report was unfavourable to him and therefore, he had<\/p>\n
proceeded on voluntary retirement. Though the petitioner has positively<\/p>\n
averred that the notings evidenced by Ext.P10 is false and that no<\/p>\n
enquiry was ever held, the first respondent has not chosen to controvert<\/p>\n
the said fact.    Ext.P13 establishes beyond doubt that no enquiry<\/p>\n
whatsoever was held against        the petitioner in connection with the<\/p>\n
recruitment of contingency staff while he was the Accountant General of<\/p>\n
Kerala. The notings in Ext.P10 file placed before the Selection Committee<\/p>\n
were brought to the notice of the Selection Committee as directed by the<\/p>\n
Honourable the Chief Justice of India and the Selection Committee on<\/p>\n
going through the notings evidenced by Ext.P10 decided to withdraw the<\/p>\n
recommendation to appoint the petitioner as Administrative Member in<\/p>\n
the CAT. The Honourable the Chief Justice of India concurred with the<\/p>\n
decision of the Selection Committee to withdraw its earlier decision and<\/p>\n
this was accepted by the appointing authority, namely, the Government<\/p>\n
of India.   It is now very clear that the report submitted by the IB is<\/p>\n
reflected the true state of affairs and that the Joint Secretary was misled<\/p>\n
the notings submitted in Ext.P10 which led to the present dispute. The<\/p>\n
pleadings and materials on record establish that the notings evidenced<\/p>\n
by Ext.P10 were made by the Joint Secretary based on incorrect<\/p>\n
information furnished to him by the IB. Then the question is whether<\/p>\n
instead of the said fact, this Court can exercise judicial review and direct<\/p>\n
WP(C) 16915\/05                    -: 34 :-<\/span><\/p>\n
the first respondent to reconsider its decision.    The learned counsel<\/p>\n
appearing for the respondents relied on the decision of the Apex Court<\/p>\n
in Union of India and other v. Kali Dass Batish and another (supra) to<\/p>\n
contend that this Court cannot exercise power of judicial review even if it<\/p>\n
is shown that the report submitted by the IB was false or was not based<\/p>\n
on any cogent material. The Apex Court considered the scope of judicial<\/p>\n
review in the matter of appointment of the Administrative Member in the<\/p>\n
CAT made in consultation with the Honourable the Chief Justice of India.<\/p>\n
7 vacancies of Judicial Members and 3 vacancies of Administrative<\/p>\n
Members in the CAT arose during the period from 1.7.2001 to<\/p>\n
31.12.2001.     Notifications were invited to fill up the said vacancies.<\/p>\n
Sri.Kali Dass Batish and Sri.Ram Kishore Prasad had also applied for<\/p>\n
appointment to the post of Judicial Member in the CAT. The Selection<\/p>\n
Committee chaired by the Honourable the Chief Justice of India met on<\/p>\n
18.7.2001 and considered the names of 121 candidates including Sri.Kali<\/p>\n
Dass    and    Sri.Ram    Kishore Prasad.   The    Selection   Committee<\/p>\n
recommended the names of 7 persons for appointment as Judicial<\/p>\n
Members and 3 persons for appointment as Administrative Members. A<\/p>\n
waiting list of equal number of candidates was also prepared. The names<\/p>\n
of Sri.Kali Dass and Sri.Ram Kishore Prasad were serial Nos.1 and 6 in the<\/p>\n
main list of candidates recommended         for appointment as Judicial<\/p>\n
Members. The names of all the candidates included in the main list and<\/p>\n
the waiting list were sent to the IB for verification of character and<\/p>\n
WP(C) 16915\/05                     -: 35 :-<\/span><\/p>\n
antecedents.     On receipt of the report from the IB, the Director<\/p>\n
(Administrative Tribunal), Ministry of Personnel, Public Grievances and<\/p>\n
Pensions noted in the file certain adverse remarks about Sri.Kali Dass<\/p>\n
Batish. The files thereafter forwarded to the Honourable the Chief Justice<\/p>\n
of India, who concurred with the Joint Secretary vide confidential<\/p>\n
memorandum dated 6.11.2001. Sri.Kali Dass Batish and Sri.Ram Kishore<\/p>\n
Prasad were not appointed. They moved the High Courts of Himachal<\/p>\n
Pradesh and Jharkhand. The High Court of Jharkhand dismissed the Writ<\/p>\n
Petition filed by Sri.Ram Kishore Prasad holding that mere inclusion of<\/p>\n
the name of a candidate in the select list gave him no right to be<\/p>\n
appointed and that exclusion of his name on the basis of the IB report<\/p>\n
received which was made available to the Honourable the Chief Justice of<\/p>\n
India and whose concurrence was obtained by the Government of India<\/p>\n
after apprising the Honourable the Chief Justice of India of all the<\/p>\n
relevant facts, left no scope for judicial review. The Writ Petition filed by<\/p>\n
Sri.Kali Dass Batish was allowed by the High Court of Himachal Pradesh.<\/p>\n
Sri.Ram Kishore Prasad moved the Apex Court in appeal. The Union of<\/p>\n
India also moved the Apex Court challenging the correctness of the<\/p>\n
decision of the High Court of Himachal Pradesh. Both the appeals were<\/p>\n
heard together. The Apex Court thereupon held disapproving the action<\/p>\n
of the High Court of Himachal Pradesh as follows.\n<\/p>\n
The Apex Cort held that it was irregular on the part of the High Court to<\/p>\n
WP(C) 16915\/05                   -: 36 :-<\/span><\/p>\n
have sat in appeal over the issues raised in the IB report and attempted<\/p>\n
to disprove it and that the High Court was in error in sitting appeal over<\/p>\n
the decision of the Honourable the Chief Justice of India..     The Apex<\/p>\n
Court repelled the argument that the Honourable the Chief Justice of<\/p>\n
India might not have been supplied with the necessary inputs and that it<\/p>\n
is not open for anyone to contend that the Honourable the Chief Justice<\/p>\n
might have given concurrence without application of mind or without<\/p>\n
calling for the necessary inputs. The Apex Court also held that mere<\/p>\n
inclusion of a candidate’s name in the selection list does not give him a<\/p>\n
right to be appointed and that there is no occasion to maintain a Writ<\/p>\n
Petition for enforcement of a non-existing right. I am afraid that the<\/p>\n
notings in Ext.P10 might not be fully correct. As held by the Apex Court,<\/p>\n
this Court cannot presume that the Honourable Chief Justice of India<\/p>\n
might not have been supplied with necessary inputs and that the<\/p>\n
Honourable Chief Justice of India might have given concurrence without<\/p>\n
calling for the necessary inputs. Judicial discipline commands that the<\/p>\n
principle laid down by the Apex Court is followed.\n<\/p>\n
      For the reasons stated above, I hold that the reliefs sought for in<\/p>\n
this Writ Petition cannot be granted.     The Writ Petition fails and is<\/p>\n
accordingly dismissed. No costs.\n<\/p>\n<\/p>\n
                                                P.N.Ravindran,
\n                                                Judge.\n<\/p>\n
ess 12\/2<\/p>\n
WP(C) 16915\/05                    -: 37 :-<\/span><\/p>\n
3. According to the petitioner, the post of Accountant General is a post<\/p>\n
equivalent to the post of Joint Secretary of the Government of India and<\/p>\n
Civil Servants who are consistent and outstanding in their performance<\/p>\n
are posted as Joint Secretaries in the various Department of the<\/p>\n
Government of India.    He contends that as the post of Accountant<\/p>\n
General is a post equivalent to the post of Joint Secretary of the<\/p>\n
Government of India, he has 8 years experience in the category of Joint<\/p>\n
Secretary and is therefore eligible and qualified to be appointed as<\/p>\n
Administrative Member of the Administrative Tribunal constituted under<\/p>\n
the Administrative Tribunals Act, 1985, hereinafter referred to as the<\/p>\n
WP(C) 16915\/05                      -: 38 :-<\/span><\/p>\n
“Act” for short, and that the Government of India had by a notification<\/p>\n
invited applications from eligible candidates to fill up three vacancies of<\/p>\n
Administrative Members in the CAT. One among the vacancies was in the<\/p>\n
CAT, Ernakulam Bench.         Pursuant to the notification issued by the<\/p>\n
Government of India, the petitioner submitted Ext.P1 application dated<\/p>\n
23.8.2004. The guidelines regarding the constitution of the Selection<\/p>\n
Committee and the procedure to be adopted by the Selection Committee<\/p>\n
for selection of Vice Chairman and members of the CAT have been laid<\/p>\n
down by the Department of Personnel, Government of India in order<\/p>\n
No.A-1013\/54\/90-At dated 15.4.1991 and 23.4.1991. As per the said<\/p>\n
Government order, the Selection Committee is required to be chaired by<\/p>\n
a Sitting Judge of the Honourable the Supreme Court of India, nominated<\/p>\n
by the Honourable the Chief Justice of India. The Selection Committee<\/p>\n
also consists of (1) Secretary, Ministry of Law and Justice (Department of<\/p>\n
Legal Affairs), (2) Secretary, Ministry of Personnel and (3) Chairman of the<\/p>\n
CAT. The appointment of Judicial and Administrative Members of the<\/p>\n
CAT is to be made by the Central Government after taking into<\/p>\n
consideration the recommendation of the Selection Committee in<\/p>\n
consultation with the Honourable the Chief Justice of India.            The<\/p>\n
petitioner states that the Selection Committee constituted in the year<\/p>\n
2004 was headed by the Honourable the Chief Justice Mr.Justice<\/p>\n
K.G.Balakrishnan (as His Lordship then was) and that the Selection<\/p>\n
Committee       recommended       his     name    along    with   that    of<\/p>\n
WP(C) 16915\/05                     -: 39 :-<\/span><\/p>\n
Sri.N.Ramakrishnan, IAS for appointment against two vacancies of<\/p>\n
Administrative Members in the CAT, Ernakulam Bench. The petitioner<\/p>\n
further states that though he had a impeccable track in his carrier, he<\/p>\n
was not appointed though Sri.N.Ramakrishnan, IAS was appointed as<\/p>\n
Administrative Member in the CAT, Ernakulam Bench. He thereupon filed<\/p>\n
this Writ Petition on 6.6.2005 with the Government of India represented<\/p>\n
by the Secretary, Ministry of Personnel as the respondent contending that<\/p>\n
the Selection Committee failed to appoint him as Administrative Member<\/p>\n
though the Selection Committee headed by the Honourable the Chief<\/p>\n
Justice Mr.Justice K.G.Balakrishnan has included his name in the select<\/p>\n
list. He contended that the action of the Government of India in not<\/p>\n
appointing him as Administrative Member is arbitrary and violative of his<\/p>\n
fundamental rights guaranteed under Articles 14 and 16 of the<\/p>\n
Constitution. He had also prayed for a writ in the nature of mandamus<\/p>\n
commending the respondent\/ Government of India to appoint him as<\/p>\n
Administrative Member in the CAT. In the Writ Petition, the petitioner<\/p>\n
had also prayed for an interim order staying the appointment to the<\/p>\n
remaining vacancy of Administrative Member in the CAT, Ernakulam<\/p>\n
Bench. The additional second respondent was thereafter appointed as<\/p>\n
Administrative Member and Vice Chairman of the CAT, Ernakulam Bench.<\/p>\n
The petitioner thereupon filed I.A.No.93 of 2006 to implead the<\/p>\n
additional second respondent as a party to this Writ Petition. He also<\/p>\n
filed I.A.No.2831 of 2006 to amend the Writ Petition by incorporating a<\/p>\n
WP(C) 16915\/05                      -: 40 :-<\/span><\/p>\n
prayer to quash the appointment of the additional second respondent.<\/p>\n
In the Writ Petition, the petitioner also relied on the decision of Himachal<\/p>\n
Pradesh in Kali Dass Batish v. Union of India and others – 2005(1) SLR<\/p>\n
412 to contend that the Government of India is bound to appoint<\/p>\n
candidates recommended by the Selection Committee.<\/p>\n
       4. The first respondent filed a counter affidavit contending inter<\/p>\n
alia that the claim of the petitioner that he was selected for appointment<\/p>\n
as Administrative Member in the CAT, Ernakulam Bench is a speculative<\/p>\n
argument and that the correctness of the decision of the Himachal<\/p>\n
Pradesh in Kali Dass Batish v. Union of India (supra) has been held<\/p>\n
against, that the Apex Court ceased the matter and that the petitioner is<\/p>\n
not entitled to any reliefs prayed for in the Writ Petition.<\/p>\n
  Further, vacancies were       related to the period from 1.1.2004 to<\/p>\n
30.6.2004 and the petitioner has no case that the vacancies were not<\/p>\n
filled up and the petitioner cannot seek a writ in the nature of mandamus<\/p>\n
commanding the first respondent to appoint him as Administrative<\/p>\n
Member in the CAT, Ernakulam Bench.           Therefore, even if the report<\/p>\n
submitted by the Intelligence Bureau to the effect that there was no<\/p>\n
enquiry against the petitioner while he was Accountant General of Kerala<\/p>\n
and that the finding of the Intelligence Bureau which adversed to the<\/p>\n
petitioner is shown to be false.      This Court cannot presume that the<\/p>\n
Honourable the Chief Justice of India or the Chairman and Members of<\/p>\n
WP(C) 16915\/05                     -: 41 :-<\/span><\/p>\n
the Selection Committee would not have been supplied necessary inputs<\/p>\n
and that they would have given their concurrence to the proposal of the<\/p>\n
Union of India without application of mind.\n<\/p>\n
10. Per contra, the learned Assistant Solicitor General of India appearing<\/p>\n
for the Government of India submitted that the decision taken by the<\/p>\n
Selection Committee to withdraw their earlier recommendation and the<\/p>\n
decision taken by the appointing authority not to appoint the petitioner<\/p>\n
are not justiciable and that this Court cannot exercise the power of<\/p>\n
judicial review and issue a writ in the nature of mandamus commanding<\/p>\n
the Government of India to reconsider its earlier decision and appoint the<\/p>\n
petitioner.\n<\/p>\n
and after a report was obtained from the Intelligence Bureau, the<\/p>\n
Director (AT), Ministry of Personnel, Public Grievances and Pensions<\/p>\n
noted in the file three adverse remarks about Sri.Kali Dass Batish. The<\/p>\n
Director (AT) however expressed the opinion that since Sri.Kali Dass<\/p>\n
Batish had been recommended by the Selection Committee headed by a<\/p>\n
Judge of the Honourable the Supreme Court, the benefit of doubt had to<\/p>\n
be given to him and the adverse reports about his performance as a<\/p>\n
Government Pleader must be treated as counter balanced by the<\/p>\n
recommendations of the Selection Committee headed by a Sitting Judge<\/p>\n
of the Honourable the Supreme Court.         The Joint Secretary (AT&A),<\/p>\n
Ministry of Personnel and Training also made certain notings in the file<\/p>\n
WP(C) 16915\/05                      -: 42 :-<\/span><\/p>\n
where inter alia he stated that Sri.Kali Dass Batish has strong political<\/p>\n
affiliations, that he appears to be of average caliber and that there is<\/p>\n
nothing adverse against his character and integrity. On 30.10.2001, the<\/p>\n
Secretary (Personnel) made a noting on the file that Sri.Kali Dass Batish<\/p>\n
need not be appointed. Thereafter, as directed by the Minister of State,<\/p>\n
Personnel and Public Grievances and Pensions the file was placed before<\/p>\n
the Honourable the Chief Justice of India along with all necessary papers<\/p>\n
including the report of the Intelligence Bureau.\n<\/p>\n
The Joint Secretary who made the notings in Ext.P10 which I have<\/p>\n
extracted above, had noted that though the details of the report of<\/p>\n
enquiry are not available, it would not be worthwhile to make enquiries<\/p>\n
with the Accountant General’s office at that stage and that given the<\/p>\n
information revealed by the Intelligence Bureau report, it is clear that the<\/p>\n
petitioner’s general reputation is somewhat controversial. The Joint<\/p>\n
Secretary therefore recommended that the recommendation of the<\/p>\n
Selection Committee may not be accepted since the facts brought out by<\/p>\n
the Intelligence Bureau were not brought to the attention of the Selection<\/p>\n
Committee which had before them only a simple CV of the petitioner.<\/p>\n
The matter then went back to the Honourable the Chief Justice of India<\/p>\n
together with the relevant files which included the report of the<\/p>\n
Intelligence Bureau and the notings referred to in Ext.P10. The<\/p>\n
Honourable the Chief Justice of India placed the matter before the<\/p>\n
WP(C) 16915\/05                    -: 43 :-<\/span><\/p>\n
Selection Committee and the Selection Committee resolved to withdraw<\/p>\n
their earlier recommendation to appoint the petitioner.<\/p>\n
      20. As noticed by the Apex Court in Union of India and others v.<\/p>\n
Kali Das Batish and<\/a> another (supra), this Court cannot proceed on the<\/p>\n
basis that the Honourable the Chief Justice of India or the Chairman and<\/p>\n
Members of the Selection Committee would have proceeded to act<\/p>\n
without application of mind.\n<\/p>\n
Add para 16<\/p>\n
Add para 12<\/p>\n
I shall now refer to the decisions of the Apex Court relied on by the<\/p>\n
learned Senior Advocate appearing for the petitioner.<\/p>\n
Add para 14<\/p>\n
 , referred to and relied on by the learned counsel appearing for the first<\/p>\n
WP(C) 16915\/05    -: 44 :-<\/span><\/p>\n
respondent.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court James K.Joseph vs Government Of India on 18 February, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 16915 of 2005(L) 1. JAMES K.JOSEPH, … Petitioner Vs 1. GOVERNMENT OF INDIA, … Respondent For Petitioner :SRI.P.A.AHAMMED For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR The Hon’ble MR. Justice P.N.RAVINDRAN Dated :18\/02\/2009 O R D E […]<\/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":[8,21],"tags":[],"class_list":["post-244273","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nJames K.Joseph vs Government Of India on 18 February, 2009 - 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\/james-k-joseph-vs-government-of-india-on-18-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"James K.Joseph vs Government Of India on 18 February, 2009 - 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