TMI Blog2006 (1) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... Court that, along with the proposals made by the Government, the Minister of State had specifically directed for submission of the IB report to the Chief Justice of India for seeking his concurrence, and that this was done. We note with regret that the High Court virtually sat in appeal, not only over the decision taken by the Government of India, but also over the decision taken by the Chief Justice of India, which it discarded by a side wind. In our view, the High Court seriously erred in doing so. Even assuming that the Secretary of the concerned department of the Government of India had not apprised himself of all necessary facts, one cannot assume or impute to a high constitutional authority, like the Chief Justice of India, such procedural or substantive error. The argument made at the Bar that the Chief Justice of India might not have been supplied with the necessary inputs has no merit. If Parliament has reposed faith in the Chief Justice of India as the paterfamilias of the judicial hierarchy in this Country, it is not open for anyone to contend that the Chief Justice of India might have given his concurrence without application of mind or without calling for the necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers' as respectively defined in Section 3(a) and 3(i) of the Act. Sub-sections (3) and (3A) of Section 6 of the Act prescribe the qualifications respectively for appointment of 'Judicial Member' and 'Administrative Member'. The Department of Personnel and Training, Government of India by Order dated 15.4.1991/ 23.4.1991 has laid down detailed guidelines about the constitution and procedure to be adopted by the Selection Committee for selection of Vice-Chairman and Members of the CAT. In the case of selection of a Judicial Member, the Selection Committee is required to be chaired by the nominee of the Chief Justice of India, who shall be a sitting Judge of the Supreme Court of India and shall comprise the following additional members: (i) Secretary, Ministry of Law and Justice (Department of Legal Affairs); (ii) Secretary, Ministry of Personnel; and (iii) Chairman of the CAT. 3. Seven vacancies of Judicial Members and three vacancies of Administrative Members of the CAT arose during the period 1.7.2001 to 31.12.2001. Nominations were invited for these vacancies from different authorities. 4. First and Second Respondents in C.A. No. 6663/2004, namely, K.D. Batish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court. 5. On 29.10.2001 the Joint Secretary (AT A), Ministry of Personnel and Training made a noting to the following effect: (i) Shri Batish has strong political affiliations and was a contender for the Shimla AC seat in 1982 and 1985 from BJP; (ii) He appears to be of average caliber and Justice Khurana of the Himachal Pradesh High Court seems to have asked the Advocate General to shift him to some other Court; and (iii) There is nothing adverse against his character or integrity. 6. On 30.10.2001 the Secretary (P) made a noting on the file that Shri Batish need not be appointed since his performance was so poor that he was shifted to another Court. On 31.10.2001 the Minister of State made a noting and directed that the IB Report along with the department recommendations be sent to the Chief Justice of India. Accordingly, the Secretary (Personnel) vide Confidential Memorandum dated 6.11.2001 forwarded all necessary papers including the IB Report and sought the concurrence of the Chief Justice of India with regard to the names recommended by the Central Government. 7. On 12.11.2001 the Chief Justice of India concurred with the proposal submitted to him vide Confide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appointing authority) to reconsider afresh, as a special case, the petitioner-K.D. Batish for his appointment as a Judicial Member of the CAT, based on his selection by the Selection Committee. 10. The Union of India has challenged the judgment of the High Court of Himachal Pradesh in CWP No. 812/2003 by its Civil Appeal No. 6663/2004 in which K.D. Batish and Ram Kishore Prasad are the First and Second Respondents, respectively. Ram Kishore Prasad was a Respondent in the writ petition before the Himachal Pradesh High Court and therefore appears to have been made a Respondent in this case also. 11. The learned Solicitor General made a frontal attack on the judgment of the High Court of Himachal Pradesh contending that the High Court has far exceeded its powers of judicial review and grievously erred in interfering with the decision of the Union of India and the appointing authority not to appoint the First and Second Respondents to the posts of Judicial Members of the CAT, after obtaining the concurrence of the Chief Justice of India. He also contends that the High Court erred in adopting the extraordinary procedure of calling for an affidavit of the Registrar General to be filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasized that even for the appointment of a Constable in Police Services, verification of character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Even if such candidate was found physically fit, had passed the written test and interview and was provisionally selected, if on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable, the view taken by the appointing authority could not be said to be unwarranted, nor could it be interdicted in judicial review. These are observations made in the case of a Constable, they would apply with greater vigour in the case of appointment of a Judicial Member of the CAT. It is for this precise reason, that sub- section (7) to Section 6 of the Act requires that, the appointment of a Member of the CAT cannot be made except after consultation with the Chief Justice of India . This consultation should, of course, be an effective consultation after all necessary papers are laid before the Chief Justice of India, and is the virtual guarantee for appointment of absolutely suitable candidates to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iat Singh , this Court reiterated the observations of the Constitution Bench of this Court in Shankarsan Dash v. Union of India as under: 7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng non-existence of the state of affairs on which the validity of its exercise was predicated. Quite properly, the courts were slow to read implied limitations into grants of wide discretionary powers which might have to be exercised on the basis of broad considerations of national policy. Based on this reasoning, it was acknowledged that the transfer of a Judge of the High Court based on the recommendation of the Chief Justice of India would be immune from judicial review as there is an inbuilt check against arbitrariness and bias indicating absence of need for judicial review on those grounds. This is how the area of justiciability is reduced 19. We, respectfully, reiterate these observations, and expect them to be kept in mind by all courts in this Country invested with the power of judicial review. 20. The respondents have relied on the judgments of this Court in R.S. Mittal v. Union of India in support of their contentions. In our view, the said authority hardly advances their case. In the first place, all that the authority says is that where a Selection Board headed by a sitting Judge of the Supreme Court had recommended certain candidates for appointment as Members of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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