TMI Blog1995 (5) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... by the court. They stated that they could not obtain a copy of the appointment letter of the aforesaid persons. They prayed for Writ of Quo Warranto to show under what authority they were functioning and for a declaration that the constitution of SAT was null and void. The respondents Nos.3 to 6 were Members of the SAT and respondent No.7 was its Vice-Chairman. The respondent Nos.1 and 2 were the Union of India and the State of Madhya Pradesh, respectively. The High Court quashed the appointments of the respondents Nos.3 to 7 by the impugned judgment dated 29.7.1993. The respondents Nos.3 to 6 jointly challenge the judgment in Civil Appeal No.5061 of 1993. The appeal filed by the respondent No.7 is Civil Appeal No.5062 of 1993. The Union of India also challenges the judgment in Civil Appeal No.7486 of 1993. The Industrial Labour Bar Association, Bhopal and another who claim to have been intervenors before the High Court have come up with a special leave petition (civil) No.17232 of 1993. We grant them special leave. Shri R.P. Kapoor, whose appointment as Vice-Chairman and S/Shri Dr. Narinder Nath Veermani, R.M. Rajwade, G.S. Patel and S.S. Lamba whose appointments as members w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subsequent orders emanating from that decision. Based on the import of the said observations the High Court went into the question whether the appointments of the Vice- Chairman and Members were validily made. The High Court on appreciation of the decision in S.P. Sampath Kumar and related cases came to the conclusion that the appointment of a High Powered Committee was a sine qua non under the said decisions and the mere fact that the Chief Justice of India had approved the appointments on the administrative side would not render the appointments valid. Detailing the procedure followed in the matter of selection, the High Court after referring to the notings in the department file held the same to be arbitrary and discriminatory and even went to the length of describing the same as 'murky', 'self- motivated' and 'biased' and in total violation of the procedure prescribed by the Government of India under its order of 15th April, 1991 and consequently quashed the appointments. The petitions were allowed with cost quantified at ₹ 2,500/-. The main question is whether the mode of selection and appointment of the Chairman, Vice-Chairman and Members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned Act excluding the jurisdiction of the High Court under Articles 226 and 227 in respect of service matters and vesting such jurisdiction in the Administrative Tribunal can pass the test of constitutionality as being within the ambit and coverage of clase (2) (d) of Article 323A, only if it can be shown that the Administrative Tribunals set up under the impugned Act is equally efficacious as the High Court so far as the power of judicial review over service matter is concerned. We must, therefore, address ourselves to the question whether the Administrative Tribunal established under the impugned Act can be regarded as equally effective and efficacious in exercising the power of judicial review as the High Court acting under Articles 226 and 227 of the Constitution. The majority judgment in S.P.Sampath Kumar's case (supra) delivered by Misra, J. also expressed the same view in these words: What, however, has to be kept in view is that the Tribunal should be a real substitute for the High Court not only in form and de jure but in content and de facto. As was pointed out in Minerva Mills (AIR 1980 SC 1789) the alternative arrangement has to be effective and eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r retired judge of a High Court should be done by a high powered committee with a sitting judge of the Supreme Court to be nominated by the Chief Justice of India as its Chairman. This will ensure selection of proper and competent people to man these high offices of trust and help to build up reputation and acceptability. The Court desired amendments to bring the provisions in accordance with the observations made in the judgment and hoped that the amendments would be brought about by 31.3.1987. Bhagwati, J. in his judgment considered the method of appointment of the Judges of the High Court, i.e. appointment by the Government in consultation with the Chief Justice of India and observed:- Obviously, therefore, if the Administrative Tribunal is created in substitution of the High Court and the jurisdiction of the High Court under Articles 226 and 227 is taken away and vested in the Administrative Tribunal, the same independence from the possibility of executive pressure or influence must also be ensured to the Chairman and memebers of the Administrative Tribunal. Or else the Administrative Tribunal would cease to be equally effective and efficacious substitute for the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Powered Selection Committee should be headed by a sitting Judge of the High Court to be nominated by the Chief Justice of the High Court concerned. The Central Government yet again filed review petitions Nos. 520-23 of 1987 seeking modification of the court's order to the effect that consultation with the Chief Justice of India alone be prescribed as sufficient because selection by a High Powered Selection Committee was likely to be time consuming. The review petitions also prayed for extension of time for bringing about the amendments. It appears from the order reported in (1987) Supp. SCC 737 that the court did not make any order on the prayer for modification of the order although it granted extension of time prayed for. Two questions that confront us at this stage are: (a) Whether the direction to set up a High Powered Selection Committee was mandatory or simply advisory in nature; and (b) Whether non compliance of the direction in making the amendment vitiates the amendment; The judgment, carefully read, clearly indicates that the direction for setting up a High Powered Selection Committee was merely advisory and not mandatory in character. The Act originally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : In view of what has been stated before us by the learned Attorney General of India, we extend the time granted to the Union of India upto January 31, 1988 for introducing necessary changes in the statute through legislative enactment in Parliament or by issuing a Presidential Ordinance. We trust it will not be necessary now for the Union of India to seek any further extension of time as this matter has been pending for a long time. The civil miscellaneous petitions are disposed of accordingly. On behalf of the Union of India it is submitted that the previous order regarding the High Powered Selection Committee stood modified by this order and the Government accordingly introduced the Amending Act only to make provision for consultation with the Chief Justice of India. Although it cannot be said that the prayer of the Union of India to introduce the provision to consult the Chief Justice of India in preference to the High Powered Selection Committee was allowed by the court, it can be perceived that the court itself did not reject the prayer or reiterate the previous suggestion. That means the view expressed in the order dated 5.5.1987 stood unaltered. Now we come to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lect the candidates through a Selection Committee appointed by the Government of India on 15.4.1991. Admittedly, intimation thereof was given to the State Governments by letter dated 19.4.1991. The High Court further observed that even the appointment of the Selection Committee was not in accordance with the order of this Court which provided for appointment of a High Powered Selection Committee. However, the Selection Committee constituted by the Government of India comprised only the Chief Justice of the High Court, the Chief Secretary and the Law Secretary. The High Court on an analysis of the various notes on the Government files observed that the appellants R.P.Kapur and G.S.Patel used their own influence as Chief Secretary and Law Secretary to get themselves appointed on the State Administrative Tribunal and, therefore, their appointments were fraudulent. The appellants pointed out that the High Court committed serious errors in appreciating how the selection process moved. In fact when the High Court examined the files of the Government, the hearing had concluded on 16.12.1992 and the appellants had no opportunity to explain the various notes on the files since the same w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was urgent. The then Chief Justice of India accorded his approval on 18.4.1991 to the appointments of Messrs Lamba, M.N. Virmani, G.S. Patel and Rajwade. It would not be proper to say that because on 15.4.1991 the Government of India constituted the Committee for selection which was not even communicated to any State Government till 19.4.1991, the approval granted by the then Chief Justice of India be set at naught and the whole process of selection/nomination be redone. So far as appellant R.P.Kapur is concerned, the Selection Committee could not be ignored. His name was proposed by the Chief Minister himself on 27.4.1991. The proposal was approved by the Government on 30.4.1991. Subsequently, however, the Secretary, General Administrative Department, noted that the proposal had to be sent to the Selection Committee. It was further noted by him on the file that the Chief Secretary himself being the candidate proposed could not be associated with the Selection Committee. The Committee, therefore, of necessity comprised only of the Chief Justice of the High Court of Madhya Pradesh and the Law Secretary. The Chief Justice approved the name of R.P. Kapoor when the file was presente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court should have been extra cautious since it was casting serious aspersions against the appellants, particularly, R.P.Kapoor. As we shall briefly point out, the conclusion that the appointments ..... are result of murky self-motivated machinations and are, therefore, vitiated by bias , is not borne out from the material relied on by the High Court. In the first place it must be remembered that the original petitioners had filed writ petitions in the High Court wherein they had sought an interim order against their repatriation to their parent department. On the constitution of the Tribunal their writ petitions were transferred to the Tribunal. The Government had moved an application for vacating the interim order and apprehending that the stay may be vacated, they challenged the constitution of the Tribunal. The idea was to paralyse the Tribunal and prevent it from hearing their petitions for otherwise ordinarily the litigant would like that his case proceeds. In the circumstances it is difficult to say that the petitioners were actuated by considerations of public interest. Secondly, it is not in dispute that all the Members/Vice-Chairman were eligible for appointment, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt judgment. It is indeed true that R.P. Kapoor in his capacity as Chief Secretary forwarded the file to the Chief Minister on 11.4.1991 proposing his name as Vice-Chairman which was returned by the Chief Minister to the Secretary, GAD, on 27.4.1991. Did forwarding of the file amount to 'active association' with the process of appointment? The fact that under the Rules of Business framed under Article 166 of the Constitution, it is not disputed that the normal channel of submission was through the Chief Secretary. Two options were, therefore, available to R.P.Kapoor; either he as a part of his duty forward the file or refuse to endorse the file. There is nothing else on record to show his active participation thereafter. So far as Secretary, GAD, is concerned, he marked the file to the Chief Secretary, as per the Rules of Business. There was nothing else he could have done. The Chief Secretary could have avoided to endorse the file but to do so also he would have been required to say so. He chose to quietly forward the file to the Chief Minister without his own comment. It seems to us that the High Court read too much in this action of the Chief Secretary in describing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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