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TMI Blog2006 (1) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... cisable immediately on and from the appointed day by all courts other than the Supreme Court with regard to service matters and disputes pertaining to service inter alia of Central Government employees. It comprises 'Administrative Members' and 'Judicial Members' 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection Committee headed by a Judge of the Supreme Court, the benefit of doubt had to be given to him and the dissatisfaction of Justice Khurana with his performance must be treated as counterbalanced by the recommendation of the Selection Committee headed by the Sitting Judge 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Judicial Member of the CAT and seeking a mandamus for his appointment. Though the said writ petition was contested by the Union of India, the High Court by its judgment dated 25.5.2004 allowed the writ petition and directed the respondents to the writ petition (Union of India and the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litical affiliations, integrity of conduct and moral uprightness. All these factors have necessarily to be verified before a decision is taken by the appointing authority to appoint a candidate to a sensitive post like Member of the CAT. In Delhi Administration v. Sushil Kumar this Court emphasized 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt also rightly pointed out that mere inclusion of a candidate's name in the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right. 16. In Punjab State Electricity Board and Ors. v. Malkiat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by citing with approval a passage in De Smith's Judicial Review of Administrative Action, (vide Paragraph 23) as under: "Judicial self-restraint was still more marked in cases where attempts were made to impugn the exercise of discretionary powers by alleging abuse of the discretion itself rather than alleging 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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