{"id":33836,"date":"2003-09-09T00:00:00","date_gmt":"2003-09-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-k-majotra-vs-union-of-india-ors-on-9-september-2003"},"modified":"2016-09-11T10:52:17","modified_gmt":"2016-09-11T05:22:17","slug":"v-k-majotra-vs-union-of-india-ors-on-9-september-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-k-majotra-vs-union-of-india-ors-on-9-september-2003","title":{"rendered":"V.K. Majotra vs Union Of India & Ors on 9 September, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
V.K. Majotra vs Union Of India & Ors on 9 September, 2003<\/div>\n
Author: Bhan<\/div>\n
Bench: R.C. Lahoti, Ashok Bhan.<\/div>\n
           CASE NO.:\nAppeal (civil)  4106 of 2002\nAppeal (civil)  4107 of 2002\nAppeal (civil)  4404 of 2002\nReview Petition (civil)  398 of 2002\n\nPETITIONER:\nV.K. Majotra\t\nShambhu Dayal\t\nUnion of India & Ors.\t\nGopal Singh\t\n\nRESPONDENT:\nUnion of India & Ors.\t\nUnion of India & Ors., \t\nShambhu Dayal & Ors.,\t\nUnion of India & Ors.\t\n\nDATE OF JUDGMENT: 09\/09\/2003\n\nBENCH:\nR.C. Lahoti & Ashok Bhan.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
BHAN, J.\n<\/p>\n
\tThis judgment shall dispose of Civil Appeal No. 4107 of 2002, Civil
\nAppeal No. 4404 of 2002 impugning the final order dated  9th April, 2002
\npassed by the High Court of Allahabad, Civil Appeal No. 4106 is directed
\nagainst the interim order dated 25th February, 2002 passed in the writ
\npetition while it was pending in the High Court and Writ Petition (C) No.
\n398 of 2002 filed under Article 32 of the Constitution of India by Shri Gopal
\nSingh, Administrative Member, Central Administrative Tribunal, Jodhpur
\nBench, at Jodhpur, challenging the empaneling of Shri V.K.Majotra,
\nrespondent No. 5 on the ground that he was not qualified to be chosen as
\nVice-Chairman of Central Administrative Tribunal.  The point raised in all
\nthe cases being common, the same are taken up together for disposal.\n<\/p>\n
\tThe facts are:\n<\/p>\n
\tShambhu Dayal, appellant in Civil Appeal No. 4107 of 2002 filed
\nWrit Petition No. 8248 of 2002 in the High Court of Allahabad challenging
\nthe panel prepared for the post of Vice-Chairman in various branches of the
\nCentral Administrative Tribunal (hereinafter referred to as ‘the Tribunal’) in
\nIndia and seeking for preparation of a fresh panel.  Empanelment of V.K.
\nMajotra, respondent No.5, was challenged on the ground that he was not
\nqualified to be chosen for the post of Vice-Chairman to the Tribunal.  He
\nalso impugned the constitutional validity of  Explanation to Section 6 of the
\nAdministrative Tribunals Act, 1985 (hereinafter referred to as ‘the Act’)
\nbeing ultra vires of the Constitution of India and inoperative.\n<\/p>\n
By an interim order dated  25th February, 2002 the High Court being
\nprima facie of the opinion that only a sitting or retired High Court Judge or
\nan advocate who is qualified for appointment as a High Court Judge could
\nbe appointed as Vice-Chairman of the Tribunal issued a direction that in the
\npanel already prepared for appointment of Vice-Chairman of various
\nBranches of the Tribunal and in future panels also only the person referred to
\nSection 6 (2) (a) of the Act could be appointed as the Vice-Chairman of the
\nTribunal.\n<\/p>\n
\tAggrieved against the interim order of 25th February, 2002 Mr. V.K.
\nMajotra filed Civil Appeal No. 4106 of 2002 in which leave was granted and
\noperation of the interim order dated 25th February, 2002 passed by the High
\nCourt  was stayed.\n<\/p>\n
\tThe writ petition was taken up for final disposal by the High Court on
\n9th April, 2002.  Instead of disposing of the writ petition on the pleas raised
\nin the writ petition or the points raised by the counsel for the parties during
\nthe course of the arguments, the High Court going completely off the tangent
\nwent on to hold that the Vice-Chairman of the Tribunal should be from a
\nlegal background and can only be a sitting or retired High Court Judge or an
\nadvocate who is qualified for appointment as a High Court Judge.  It was
\nheld that in the instant panel prepared by the Government and in all future
\npanels only the person referred to in Section 6 (2)(a) of the Act can be
\nappointed as the Vice-Chairman of the various benches of the Tribunal.  It
\nwas also observed that there are number of Tribunals in the country like
\nCEGAT, Board of Revenue, Income Tax Appellate Tribunal etc., which
\nshould have persons from a legal background as the presiding Judge to
\nmaintain the confidence of the public.  That the senior member of every
\nTribunal must be a person with a legal background as presiding officer of the
\nTribunal which would ensure compliance of the mandate of Article 50 of the
\nConstitution of  India.  A direction was issued to the authorities including
\nthe Government to take speedy steps to ensure compliance of the judgment
\nand appoint as presiding Judge of every Tribunal a person with a legal
\nbackground so that the Tribunal may be independent and inspire confidence
\nof the public.  If it is a single member bench, then the person must be from a
\nlegal background.  Registrar General of the High Court was directed to send
\ncopies of the judgment to the Secretary, Law Department, Union of India,
\nthe secretary Personnel and Appointment Department, Union of India, the
\nCabinet Secretary of Union of India and to the Chief Secretary of the U.P.
\nGovernment as also to the Chairman of the CAT and other appropriate
\nauthorities for due compliance.\n<\/p>\n
\tAppeals have been filed by the Union of India, writ petitioner
\nShambhu Dayal as well as V.K. Majotra, whose appointment was challenged
\nin the writ petition taking strong exception to the manner in which the
\npetition has been disposed of and the decision arrived at by the High Court.
\nIt is contended that point on which the writ petition was disposed of was
\nneither raised in the pleadings nor argued before the High Court by any of
\nthe parties to the writ petition; that point raised in the writ petition has
\nneither been adverted to or adjudicated upon by the High Court and  that the
\nHigh Court was wrong in adopting such an approach.  As to whether a
\nperson not having judicial experience could  be appointed as Vice-Chairman
\nof the Tribunal was not questioned in the writ petition.  Similarly, vires of
\nSection 6(2) (b) (bb) and (c) were not challenged.  High Court without
\nstriking down the provisions of Section 6 (2) (b) (bb) and (c) has obliterated
\nthem from the statute book by holding that henceforth  the appointment to
\nthe post of Vice-Chairman be made only from amongst the persons
\nmentioned in Section 6 (2) (a) of the Act.  It is further contended that the
\nHigh Court did not stop at giving direction that the Vice-Chairman of CAT
\nshould be from amongst the persons having judicial training but went a step
\nahead to hold that CEGAT, Board of Revenue, Income Tax Appellate
\nTribunal etc., which were not even remotely connected to the dispute in the
\nwrit petition should also be manned by persons having judicial training and
\nno administrative member should be appointed as the presiding officer of
\nsuch a Tribunal.  No notice had been issued to the concerned or the affected
\nparties.   Such a direction is totally unsustainable in law being in violation of
\nprinciples of natural justice if not anything more.  Lastly,  it was contended
\nthat the impugned judgment of the High Court runs contrary to the view
\ntaken by this Court and therefore bad in law.\n<\/p>\n
\tCounsel for the parties have been heard at length.\n<\/p>\n
We have perused the pleadings of the writ petition and the counter
\naffidavits filed by the respondents before the High Court.  Counsel for the
\nparties are right in submitting that the point on which the writ petition has
\nbeen disposed of was not raised by the parties in their pleadings.  The parties
\nwere not at issue on the point decided by the High Court.  Counsel for the
\nparties are also right in contending that the point raised in the writ petition
\nwas neither adverted to nor adjudicated upon by the High Court. It is also
\ncorrect that vires of Section 6(2) (b) (bb) and (c) of the Act were not
\nchallenged in the writ petition.  The effect of the direction issued by the
\nHigh Court that henceforth the appointment to the post of Vice-Chairman be
\nmade only from amongst the sitting or retired High Court Judge or an
\nadvocate  qualified to be appointed as a Judge of the High Court would be
\nthat Sections 6 (2) (b) (bb) and (c) of the Act providing for recruitment to the
\npost of Vice-Chairman from amongst the administrative services have been
\nput at naught\/obliterated from the statute book without striking them down
\nas no appointment from amongst the categories mentioned in clauses (b)
\n(bb) and (c) could now be made. So long as Section 6 (2)(b)(bb) and (c)
\nremains on the statute book such a direction could not be issued by the High
\nCourt.  With respect to the learned Judges of the High Court we would say
\nthat the learned Judges have over stepped their jurisdiction in giving a
\ndirection beyond the pleadings or the points raised by the parties during the
\ncourse of the arguments.  The writ courts would be well advised to decide
\nthe petitions on the points raised in the petition and if in a rare case keeping
\nin view the facts and circumstances of the case any additional points are to
\nbe raised then the concerned and affected parties should be put to the notice
\non the additional points to satisfy the principles of natural justice.  Parties
\ncannot be taken by surprise.  We leave the discussion here.\n<\/p>\n
We are also in agreement with the submissions made by the counsel
\nfor the appellants that the High Court exceeded its jurisdiction in issuing
\nfurther directions to the  Secretary, Law Department, Union of India, the
\nsecretary Personnel and Appointment Department, Union of India, the
\nCabinet Secretary of Union of India and to the Chief Secretary of the U.P.
\nGovernment as also to the Chairman of the CAT and other appropriate
\nauthorities  that henceforth the appointment to the post of  presiding officer
\nof various other Tribunals such as CEGAT, Board of Revenue, Income Tax
\nAppellate Tribunal etc.,  should be from amongst the judicial members
\nalone.  Such a finding could not be recorded without appropriate pleadings
\nand notifying the concerned and affected parties.\n<\/p>\n
  The relevant provisions of Section 6 read as under:\n<\/p>\n
“6.  Qualifications for appointment of Chairman,
\nVice-Chairman or other Members.- (1) A person
\nshall not be qualified for appointment as the Chairman
\nunless he \u2013<\/p>\n
(a)\tis, or has been, a Judge of a High Court; or<\/p>\n
(b)\thas, for at least two years, held the office of
\nVice-Chairman.\n<\/p>\n
(2) A person shall not be qualified for appointment as
\nthe Vice-Chairman unless he \u2013<\/p>\n
(a)\tis, or has been, or is qualified to be a Judge of a
\nHigh Court; or\n<\/p>\n
(b)\thas, for at least two yeas, held the post of a
\nSecretary to the Government of India or any
\nother post under the Central or a State
\nGovernment carrying a scale of pay which is
\nnot less than that of a Secretary to the
\nGovernment of India; or <\/p>\n
(bb)\thas, for at least five yeas, held the post of an
\nAdditional Secretary to the Government of
\nIndia or any other post under the Central or a
\nState Government carrying a scale of pay which
\nis not less than that of an Additional Secretary
\nto the Government of India; or <\/p>\n
(c)\thas, for a period of not less than three years,
\nheld office as a Judicial Member or an
\nAdministrative Member.\n<\/p>\n
xxx\t\t\txxx<\/p>\n
(6) The Chairman, Vice-Chairman and every other
\nMember of Joint Administrative Tribunal shall,
\nsubject to the terms of the agreement between the
\nparticipating State Governments published under sub-
\nSection (3) of Section 4, and subject to the provisions
\nof sub-section (7), be appointed by the President after
\nconsultation with the Governors of the concerned
\nStates.\n<\/p>\n
Explanation.- In computing, for the purposes of this
\nSection, the period during which a person has held
\nany post under the Central or a State Government,
\nthere shall be included the period during which he has
\nheld any other post under the Central or a State
\nGovernment (including an office under this Act)
\ncarrying the same scale of pay as that of the first
\nmentioned post or a higher-scale of pay.\n<\/p>\n
(7)\tNo appointment of a person possessing the
\nqualifications specified in this Section as the
\nChairman, a Vice-Chairman or a Member shall be
\nmade except after consultation with the Chief Justice
\nof India.”\n<\/p>\n
\tReading  of the above provisions make it clear that Chairman can be
\nappointed under Section 6 (1) (a) from amongst the sitting or retired Judges
\nof the High Court or if he has held the office of Vice-Chairman for two
\nyears.  The eligibility for the appointment of Vice-Chairman is provided in
\nclauses (b) (bb) and (c) of Section 6 (2). Clause (a) provides that
\nappointment can be  made of a person who is or has been or is qualified to
\nbe a Judge of a High Court; Clause (b) provides that a person has for at
\nleast two yeas, held the post of a Secretary to the Government of India or
\nany other post under the Central or a State Government carrying a scale of
\npay which is not less than that of a Secretary to the Government of India;
\nClause (bb) provides that a person has, for at least five yeas, held the post of
\nan  Additional Secretary to the Government of India or any other post under
\nthe Central or a State Government carrying a scale of pay which is not less
\nthan that of an Additional Secretary to the Government of India; and Clause\n<\/p>\n
(c) provides that a person has, for a period of not less than three years, held
\noffice as a Judicial Member or an Administrative Member.\n<\/p>\n
\tAdministrative Tribunals Act was enacted in the year 1985 by the
\nParliament under Article 323-A of the Constitution.  Constitutional validity
\nof this Act was challenged and upheld by the Constitution Bench of this
\nCourt in S.P. Sampath Vs. Union of India & Ors., 1987 (1) SCC 124.  Vires
\nof the provisions of the Act other than Section 6(1) (c) were upheld. Section
\n6(1) (c) provided that Secretary to the Government of India could be
\nappointed as Chairman of the Tribunal.  It was directed that Section 6(1) (c)
\nbe omitted from the statute. This observation of the Court was accepted and
\nSection 6(1)(c) of the Act was later on deleted from the statute. As to sub-
\nsection (a), (b), (bb) and (c) of Section 6(2) for the appointment of
\nChairman\/Vice-Chairman and other members from amongst the
\nadministrative services it was observed (vide para 21) in the lead judgment
\nof the Ranganath Misra, J.:\n<\/p>\n
“\u2026We do not want to say anything about Vice-Chairman
\nand members dealt with in sub-sections (2), (3) or (3-A)
\nbecause so far as their selection is concerned, we are of
\nthe view that such selection when it is not a sitting Judge
\nor retired Judge of a High Court should be done by a
\nhigh-powered committee with a sitting Judge of the
\nSupreme Court to be nominated by the Chief Justice of
\nIndia as its Chairman.   This will ensure selection of
\nproper and competent people to man these high offices of
\ntrust and help to build up reputation and acceptability.
\nOnce the qualifications indicated for appointment of
\nChairman are adopted and the manner of selection of
\nVice-Chairman and members is followed, are inclined to
\nthink that the manning of the Tribunal would be proper
\nand conducive to appropriate functioning.  We do not
\npropose to strike down the prescriptions containing
\ndifferent requirements but would commend to, the
\nCentral Government to take prompt steps to bring the
\nprovisions in accord with what we have indicated.  We
\nmust state that unless the same be done, the Constitution
\nof the Tribunal as a substitute of the High Court would be
\nopen to challenge.  We hasten to add that our judgment
\nshall operate prospectively and would not affect
\nappointments already made to the offices of Vice-
\nChairman and member – both administrative and
\njudicial.”\n<\/p>\n
 \tObservations to the same effect were made by Bhagwati, CJ in his
\nseparate but concurring judgment.  It was held that there should be no
\npreponderance of administrative members in the Tribunal and the Tribunal
\nshould consist of one judicial member and one administrative member on
\nany bench.  That the presence of the administrative member would provide
\ninput of practical experience in the functioning of the services.   The Bench
\ndirected that the selection of Vice-Chairman and the other members from the
\nadministrative services should be made by a high powered committee with a
\nsitting Judge of the Supreme Court to be nominated by the Chief Justice of
\nIndia which would ensure selection of proper and competent people to man
\nthese high offices of trust and help to build up reputation and acceptability of
\nthe Tribunal.\n<\/p>\n
The question as to whether the members of the administrative services
\ncould be appointed as members of the Central Administrative Tribunal or
\nVice-Chairman was answered in the affirmative.  Vires of Section
\n6(2)(a)(b)(bb) and (c) were upheld.\n<\/p>\n
This question was again considered in L. Chandra Kumar  Vs. Union
\nof India, 1997 SCC 261, by a Seven-Judge Constitution Bench.  In this case
\nas well an argument was raised that the appointment of Administrative
\nMembers to Administrative Tribunals be stopped.  The Court observed that
\nit was difficult to accept such a contention since setting up of these Tribunals
\nis founded on the premise that specialist bodies comprising of both trained
\nadministrators and those with judicial experience would by virtue of their
\nspecialised knowledge be better equipped to dispense speedy and efficient
\njustice.  The Court held:\n<\/p>\n
“We are also required to address the issue of the
\ncompetence of those who man the Tribunals and the
\nquestion of who is to exercise administrative supervision
\nover them.  It has been urged that only those who have
\nhad judicial experience should be appointed to such
\nTribunals.  In the case of Administrative Tribunals, it has
\nbeen pointed out that the Administrative Members who
\nhave been appointed have little or no experience in
\nadjudicating such disputes; the Malimath Committee has
\nnoted that at times IPS Officers have been appointed to
\nthese Tribunals.  It is stated that in the short tenures that
\nthese Administrative Members are on the Tribunal, they
\nare unable to attain enough experience in adjudication
\nand in cases where they do acquire the ability, it is
\ninvariably on the eve of the expiry of their tenures.  For
\nthese reasons, it has been urged that the appointment of
\nAdministrative Members to Administrative Tribunals be
\nstopped.  We find it difficult to accept such a contention.
\nIt must be remembered that the setting up of these
\nTribunals is founded on the premise that specialist bodies
\ncomprising both trained administrators and those with
\njudicial experience would, by virtue of their specialised
\nknowledge, be better equipped to dispense speedy and
\nefficient justice.  It was expected that a judicious mix of
\nJudicial members and those with grassroots experience
\nwould best serve this purpose.  To hold that the Tribunal
\nshould consist only of Judicial Members would attack the
\nprimary basis of the theory pursuant to which they have
\nbeen constituted.  Since the Selection Committee is now
\nheaded by a Judge of the Supreme Court, nominated by
\nthe Chief Justice of India, we have reason to believe that
\nthe Committee would take care to ensure that
\nAdministrative Members are chosen from amongst those
\nwho have some background to deal with such cases.”\n<\/p>\n
\tFrom the above observations, it is clear that this Court held that
\nit was not desirable to stop the appointment of members of administrative
\nservices as administrative members to the Tribunal.  Rather the judicious
\nmix of Judicial Members and those with grassroot experience would serve
\nthe purpose better for which the Tribunals were created.  Contention that
\nTribunal should consist only of Judicial members was rejected and it was
\nheld that such a direction would attack the primary basis of the theory
\npursuant to which the Tribunals were constituted.   It was observed that a
\nSelection Committee which was headed by a sitting Judge of the Supreme
\nCourt would ensure that Administrative Members would be chosen from
\namongst those who had the requisite background to deal with the cases
\ncoming up before the Tribunal.\n<\/p>\n
In view of the observations of  this Court in S.P. Sampath and
\nL. Chandra Kumar cases (supra ) the High Court was not right in observing
\nthat henceforth the appointment of Vice-Chairman should be made from
\namongst the persons mentioned in of Section 6 (2) (a) of the Act alone.  The
\nfindings recorded by the High Court run contrary to the law laid down by
\nthis Court.\n<\/p>\n
For the reasons stated above, the Civil appeals are accepted, the
\ninterim order dated 25th February, 2002 which merged with the final order
\ndated 9th April, 2002 passed by the High Court are set aside.  The stay
\ngranted by the High Court is vacated.  The authorities would be at liberty to
\nmake appointment as per selection made which would of course be subject
\nto the final result of the writ petition by the High Court.\n<\/p>\n
Since the High Court did not decide the inter se dispute between writ
\npetitioner Shri Shambhu Dayal and Shri V.K. Majotra, respondent No. 5 in
\nthe writ petition, we remit the case back to the High Court for decision in
\naccordance with law.  We would request the High Court to dispose of the
\nmatter at an early date and if possible within four months from the date of
\nreceipt\/production of a certified copy of this judgment.\n<\/p>\n
Since we are not deciding the dispute on merits and remitting the case
\nback to the High Court for appropriate decision we refrain to go into merits
\nof the dispute in writ petition No. 398 of 2002 and dismiss the same with
\nliberty to the petitioner to approach the High Court, if so advised.\n<\/p>\n
Shri D.C. Verma, Respondent No. 4 in the Writ Petition, is a Judicial
\nMember of the Tribunal.  Counsel for the parties are agreed that no relief has
\nbeen claimed in the writ petition against him and he be deleted from the
\narray of the parties. Accordingly the name of Shri D.C. Verma be deleted
\nfrom the array of the parties in the writ petition.  He is not required to appear
\nbefore the High Court henceafter.\n<\/p>\n
Appeals are allowed.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India V.K. Majotra vs Union Of India & Ors on 9 September, 2003 Author: Bhan Bench: R.C. Lahoti, Ashok Bhan. CASE NO.: Appeal (civil) 4106 of 2002 Appeal (civil) 4107 of 2002 Appeal (civil) 4404 of 2002 Review Petition (civil) 398 of 2002 PETITIONER: V.K. Majotra Shambhu Dayal Union of India & […]<\/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-33836","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nV.K. 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