CASE NO.:
Appeal (civil) 5061 of 1993
PETITIONER:
SARWAN SINGH LAMBA & OTHERS
RESPONDENT:
UNION OF INDIA & OTHERS
DATE OF JUDGMENT: 12/05/1995
BENCH:
A.M.AHMADI CJI & JAGDISH SARAN VERMA & P.B.SAWANT & B.P.JEEVAN REDDY & N.P.SINGH
JUDGMENT:
W I T H
CIVIL APPEAL NO.5062 OF 1993
R.P. Kapoor …Appellant
versus
Union of India & Others …Respondents
W I T H
CIVIL APPEAL NO. 5511 OF 1995
(Arising out of SLP(C) No.17232 of 1993)
The Industrial & Labour Bar
Association Bhopal & Another ..Appellants
versus
Union of India & Others …Respondents
A N D
CIVIL APPEAL NO.7486 OF 1993
Union of India …Appellant
versus
Daulat Singh & Others …Respondents
DELIVERED BY:
A.M.AHMADI, J.
AHMADI, CJI
This group of cases arise out of the judgment/order
dated 29.7.1993 in Miscellaneous Petition No.1102/91 passed
by High Court of Madhya Pradesh (Indore Bench). The three
petitioners before the High Court were working on the post
of Inspectors in the Police Department of Madhya Pradesh.
They sought to challenge the Constitution of the State
Administrative Tribunal (in short ‘SAT’) as well as the
appointments of the Vice-Chairman and Members of the
Tribunal as the Government had not complied with the
direction of this Court given in the case of S.P. Sampath
Kumar v. Union of India (1987)1 SCC 124 = AIR 1987 SC 386 to
amend the Administrative Tribunals Act, 1985 (hereinafter
alluded to as `the Act’) as suggested by it and had not made
the appointments after selection by a High Powered Selection
Committee as directed 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 were set
aside by the High Court are referred to in this judgment as
the appellants whereas the three police officers who filed
the writ petition before the High Court are being referred
to as the original petitioners.
The main reason for setting aside the appointments was
the alleged failure on the part of the Government to select
the candidates for the posts of members and Vice-Chairman of
the Tribunal through a High Powered Selection Committee as
directed by this Court in S.P. Sampath Kumar’s case (supra)
and in the review petitions filed subsequently, vide (1987)
Supp. SCC 734 and 735. By the judgment in S.P. Sampath
Kumar’s case (supra) certain directions were issued to the
Union of India to introduce legislative changes to cure the
defects in the procedure for appointment of the Chairman,
Vice-Chairman and Member of the Tribunal. An amendment was
made in Section 6 of the Act purportedly in compliance with
the direction of this Court. The High Court of Madhya
Pradesh has held that the amendment was not in conformity
with the direction of this Court and did not suffice to
ensure the validity of the appointments challenged in the
writ petition before it. The appeals were heard by a bench
of this Court consisting of M.M. Punchhi, S.C. Agrawal, B.P.
Jeevan Reddy, JJ. By an order dated 3.5.1994 the court
referred the matters to the Constitution Bench on the
observation that they raised questions of general importance
involving the interpretation of the provisions of Section 6
as amended by Act 51 of 1987 as well as the validity of the
appointments made in accordance with the said provisions and
that the issues affect the constitution of the CAT and the
SAT.
On the pleadings and submissions made before the High
Court, the points arising for determination came to be
formulated in paragraph 7 of the judgment. These comprised
preliminary objections as to (i) bar of jurisdiction in view
of Section 28 of the Act (ii) propriety of entertaining such
a petition by disgruntled litigants in the guise of public
interest litigation and (iii) locus standi of the
petitioners. The other technical objection raised was in
regard to the scope of a petition seeking a writ of quo
warranto. None of these objections was pressed before us.
The High Court next considered the ambit and import of the
observations made by this Court in S.P. Sampath Kumar’s case
and in 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 Rs. 2,500/-.
The main question is whether the mode of selection and
appointment of the Chairman, Vice-Chairman and Members of
the Tribunal as prescribed by the amendment of 1987 is
valid? The Amendment Act of 1987 followed the judgment of
this Court in S.P. Sampath Kumar’s case (supra) in which
certain infirmities were pointed out in the Administrative
Tribunals Act, 1985, (hereinafter referred to as ‘the Act’)
and certain directions were given for introducing
legislation to cure those defects. What this Court was
required to consider in that case was whether constitution
of the Administrative Tribunals under the Act, which
excluded the jurisdiction of the High Courts, was
inconsistent with the concept of judicial review, a basic
feature of the constitution. Recalling the law laid down in
Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789,
Bhagwati, J., said:
“…judicial review is a basic and
essential feature of the constitution
and it cannot be abrogated without
affecting the basic structure of the
Constitution and it is equally clear
from the same decision that though
judicial review cannot be altogether
abrogated by Parliament by amending the
Constitution in exercise of its
constituent power, Parliament can
certainly, without in any way violating
the basic structure doctrine, set up
effective alternative institutional
mechanisms or arrangements for judicial
review. The basic and essential feature
of judicial review cannot be dispensed
with but it would be within the
competence of Parliament to amend the
Constitution so as to substitute in
place of the High Court, another
alternative institutional mechanism or
arrangement for judicial review,
provided it is no less efficacious than
the High Court…”
Referring to Article 323A, the learned Judge observed:
“If this constitutional amendment were to permit a law
made under clause (1) of Article 323 A to exclude the
jurisdiction of the High Court under Articles 226 and
227 without setting up an effective alternative
institutional mechanism or arrangement for judicial
review, it would be violative of the basic structure
doctrine and hence outside the constituent power of
Parliament. It must, therefore, be read as implicit in
this constitutional amendment that the law excluding
the jurisdiction of the High Court under Article 226
and 227 permissible under it must not leave a void but
it must set up another effective institutional
mechanism or authority and vest the power of judicial
review in it. Consequently, 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 efficient as also capable of upholding the
constitutional limitations.”
The next step was to consider how to ensure that the
Tribunal was a ‘real substitute’ of the High Court. It was
observed that the things to be examined were whether the
judges of the Tribunal were equally efficient/trained and
equally independent as those of the High Court. Said Misra,
J. :-
“Disciplined, independent and trained judges well
versed in law and working with all openness in an
unattached and objective manner have ensured
dispensation of justice over the years. Aggrieved
people approach the court – the social mechanism to act
as the arbiter - not under legal obligation but under
the belief and faith that justice shall be done to them
and the State’s authorities would implement the
decision of the Court. It is, therefore, of paramount
importance that the substitute institution - the
Tribunal – must be a worthy successor of the High Court
in all be a worthy successor of the High Court in all
respects. That is exactly what this Court intended to
convey when it spoke of an alternative mechanism in
Minerva Mill’s case.”
The Court then proceeded to examine the competence and
independence of the Members, Vice-Chairman and Chairman of
the Tribunal. The Court struck down Section 6(1) (c) of the
Act which prescribed that a person who for atleast two years
held the post of a Secretary to the Government of India or
other equivalent post will also qualify to be the Chairman
of the Tribunal. This has no bearing on the facts of the
Present case. What is relevant for us is how the court
viewed the question so as to ensure independence of the
Members as well as of the Chairman and Vice-Chairman of the
Tribunal. The Act already had a provision that the judicial
members would be appointed only in consultation with the
Chief Justice of India but for the Administrative members as
well as for the Chairman and Vice-Chairman, no such
provision was made, thereby giving unfettered discretion to
the Government to make such appointments. It is in this
context that the court laid down the mode of their
selection. To quote from the judgment of Misra, J.:-
“We do not want to say anything about Vice-Chairman and
members dealt with in sub-sections (2), (3) or (3A)
because so far as their selection is concerned we are
of the view that such selection when it is not of a
sitting judge or 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 High Court and the provisions of the
impugned Act would be rendered invalid. I am,
therefore, of the view that the appointment of
Chairman, Vice-Chairman and Administrative members
should be made by the concerned Government only after
consultation with the Chief Justice of India and such
consultation must be meaningful and effective….”.
The method suggested by Misra,J. was also accepted by
Bhagwati,J. as an alternative for ensuring independence of
the Chairman, Vice-Chairman and Members of the
Administrative Tribunals but with a little modification.
Bhagwati,J. advised setting up of a High Powered Selection
Committee “headed by the Chief Justice of India, or a
sitting judge of the Supreme Court or concerned High Court
nominated by the Chief Justice of India.” Said the learned
Judge:
“Both these modes of appointment will ensure selection
of proper and competent persons to man the
Administrative Tribunal and give it prestige and
reputation which would inspire confidence in the public
mind in regard to the competence, objectivity and
impariality of those manning the Administrative
Tribunal. If either of these two modes of appointment
is adopted, it would save the impugned Act from
invalidation. Otherwise, it will be outside the scope
of the power conferred on Parliament under Article 323-
A. I would, however hasten to add that the judgment
will operate only prospectively and will not invalidate
appointments already made to the Administrative
Tribunal.”
The amendment that has been brought about in Section
6(7) by Act 51 of 1987 is to the effect that the
appointments to the post of Chairman, Vice-Chairman and
Members shall not be made except after consultation with the
Chief Justice of India.
It needs to be mentioned here that the Central
Government, in view of the discrepancy in the views
expressed by the two learned judges, sought clarification by
filing a review petition which was decided by an order dated
5.5.1987 reported in (1987) Supp. SCC 734. The Court
ordered:
“Having considered the matter carefully we are of the
opinion that in the case of recruitment to the Central
Administrative Tribunal the appropriate course would be
to appoint a High Powered Selection Committee headed by
a sitting Judge of the Supreme Court to be nominated by
the Chief Justice of India, while in the case of
recruitment to the State Administrative Tribunals, the
High 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 provided that the judicial
members were to be appointed after consultation with the
Chief Justice of India. Neither Bhagwati,J. nor Misra, J.
has found fault with it. Bhagwati,J. indicated that since
there is no such provision for the selection/appointment of
the Chairman, Vice-Chairman and Administrative Members,
there was a risk that they would not be independent of
executive influence. Hence Bhagwati,J. suggested that the
Chairman, Vice-Chairman and Administrative Members should
also be appointed only after consultation with the Chief
Justice of India. Misra,J. suggested appointment of the High
Powered Selection Committee for all including the judicial
members without indicating why selection after consultation
with the Chief Justice of India was not acceptable.
Obviously, Misra,J. did not discard the method of selection
of judicial members after consultation with the Chief
Justice of India. Nor did Bhagwati, J. Even in the orders
passed on the review petitions no observation against
appointments after consultation with the Chief Justice of
India was made.
The Court was confronted with the problem of ensuring
independence of the personnel of the Tribunal. There could
be several ways of ensuring such independence. Bhagwati,J.
mentioned two such methods while Misra,J. advocated one. In
the review petition again the Court altered the constitution
of the High Powered Selection Committee by saying that it
should be headed by a Supreme Court Judge when selecting the
members of the Central Administrative Tribunal but by a High
Court judge when seleclting the members of the State
Administrative Tribunals. Coming to selection of the Members
of the High Powered Selection Committee itself, the Court
did not make any suggestion or order. It cannot be disputed
that many other methods for selection to ensure independence
of the personnel of the Tribunal could be suggested. The
Court itself considered some of the possible modes and
preferred the one mentioned in the order in review reported
in (1987) Supp. SCC 734. In the subsequent review petition
in which the Government again wanted only consultation with
the Chief Justice of India to be accepted as the method of
selection of the candidates the Court did not reiterate the
previous decision. Nor did it say that the appointment after
consultation with the Chief Justice of India was not
acceptable. It ordered as under :
“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 the next question, viz., whether non-
compliance with the direction regarding the High Powered
Selection Committee vitiates the amendment. Normally even an
obiter dictum is expected to be obeyed and followed. In our
view further discussion would be purely academic for the
simple reason that without amending Section 6(7) the dicta
of the Court has in fact been made effective by the
appointment of High Powered Selection Committees both at the
Central level as well as the State levels with minor
modifications. Since these Committees are now expected to
make the choice of candidates whose names may be recommended
to the Chief Justice of India for final approval, the order
of 5.5.1987 is fully complied with. Of course, names may be
suggested to the Committee by any source but the ultimate
decision has to be taken by the Committee and if the Chief
Justice of India is not personally heading the Committee,
the final decision would have to be taken by him on the
recommendation of the Committee. It would, thus, be seen
that without amending Section 6(7), the Government has given
effect to the Court’s view expressed in the order dated
5.5.1987 which renders the challenge academic and
unnecessary to examine.
The next question is what was the scope of the enquiry
before the High Court? In para 2 of the impugned judgment
the High Court has disclosed that the petitioners challenged
the validity of the appointments of the appellants as they
were made in violation of the direction of this Court given
in S.P. Sampath Kumar’s case. The petitioners added at the
time of hearing, as can be seen from para 4 of the impugned
judgment, a plea that instead of selection, the appointments
were made by nomination without considering all eligible and
available candidates so that the best amongst them could be
selected.
The Government of India as well as the Government of
Madhya Pradesh placed before the High Court the files
relating to the impugned appointments. The High Court has
gone into a detailed analysis of how the proposal for
appointment of the appellants was mooted and how the same
was processed right upto the then Chief Justice of India.
The High Court observed that the entire procedure was
fraudulent not only because of the Government’s failure in
bringing about a proper amendment but also because of the
failure on the part of Government of Madhya Pradesh to
select 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 were produced in Court on 29.7.1993. This itself
was against the rules of natural justice. Moreover, the
applicants did not allege that the appointments had been
secured by the appellants by practising fraud on the
Government and were, therefore, bad. Was it open to the High
Court to enter upon an enquiry of this nature within the
ambit of the writ jurisdiction?
It is not in dispute that all the appellants were duly
qualified and eligible for the posts against which they had
been appointed. There is no allegation that any of them was
not suitable for any reason whatsoever. All of them had been
appointed after consultation with the then Chief Justice of
India. There was no violation of any law in the process of
their appointments.
The judgment in S.P.Sampath Kumar’s case was delivered
in 1987. In that very year, the Act had been amended in
compliance with the judgment. The Selection Committee was
appointed only on 15.4.1991. This was communicated to the
State Government on 19.4.1991. In the order dated 15.4.1991,
as quoted in the impugned judgment, there is no reference to
the judgment of this Court. As such although it can be said
that this order of appointment of the Selection Committee
must have been inspired by the judgment, it cannot be said
that this was solely in obedience to the order of this
Court. It is clear, as observed by the High Court, that the
Selection Committee was not a High Powered Committee. As
such failure to process the appointments through the
Selection Committee will not mean non-compliance with any
order of this Court or of any statutory provision. We must
not lose sight of the fact that the Government of India
itself, despite such order of appointment of Selection
Committee, approved the proposals for appointment. In fact
the appointments of the appellants other than that of
R.P.Kapur had already been approved by the Chief Justice of
India before the appointment of the Selection Committee was
communicated to the State Government. On 15.4.1991 itself
the file with the proposal of the appointments was sent to
the Chief Justice of India with the approval of the Prime
Minister mentioning further that in view of the Supreme
Court order of 9.4.1991 in Writ Petition No. 497 of 1990
Shailendra Kumar Gangrade & Anr. vs. Union of India & Ors.
for making appointments in State Administrative Tribunal
within four weeks time, the matter 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 presented to him
by the Law Secretary himself. The Law Secretary’s note
itself mentions constitution of the Committee as also his
own approval to the proposal to appoint R.P. Kapoor as the
Vice-Chairman. The High Court, in the impugned order has
observed that the Chief Justice was not told about the
appointment of the Selection Committee. This is, however,
not borne out from any record. It has to be presumed that in
the usual course of business the Chief Justice had gone
through the entire file before according his approval to the
proposal to appoint R.P.Kapoor as the Vice-Chairman of the
State Administrative Tribunal, Madhya Pradesh. Out of the
three members of the Selection Committee, one, being the
candidate himself, could not participate in the selection
process. The other two, namely, the Chief Justice of the
High Court and the Law Secretary approved the name of
R.P.Kapoor. It cannot be said that merely because the name
of R.P.Kapoor was mooted by the Chief Minister, the
subsequent approval by the members of the Selection
Committee was bad. It may be said at the cost of repetition
that there is no averment that there was anyone more
suitable than R.P.Kapoor for the post of the Vice-Chairman
who was deliberately ignored by either the Chief Minister or
the Selection Committee or the State Chief Justice. Nor is
there any averment that for some reason R.P.Kapoor should
not have been appointed the Vice-Chairman of the
Administrative Tribunal. The finding of the High Court that
the appointments of R.P. Kapoor and G.S.Patel were vitiated
because their appointments were the result of their own
machination cannot be upheld. Nor can it be said that their
appointments were fraudulent or otherwise vitiated. This
High Court seems to have read too much from the notes on the
file and, with respect, has drawn unsustainable and wholly
unwarranted inferences based on, if we may say so,
suspicion.
Before we part we would like to make a few general
observations. As has been pointed out earlier long after the
hearing had concluded the Court had called for the files
which were produced on 29.7.1993. The Court inspected the
files and has drawn its own conclusions on the basis of the
notings without giving the parties, the appellants, against
whom the inferences were drawn any opportunity to explain
the same. This was clearly in violation of the basic rule of
natural justice. The 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
that, they were fully qualified. Thirdly, it must be
remembered tht the proposal for the appointment of Members
had been initiated much before 15.4.1991 and had been
cleared by the State functionaries long before that date and
by the then Chief Justice of India before the decision was
communicated by the Central Government to the States on
19.4.1991. It is legitimate to assume that the proposal must
have been thoroughly scrutinised by the Chief Justice of
India before he gave his approval to the same. Fourthly it
is necessary to notice that R.P.Kapoor was on deputation to
the Government of India since 1980 and he was repatriated to
the State in 1990 and, therefore, in the absence of positive
evidence of his interference it would not be correct to
attribute motives to him for the State Government’s decision
to shift the seat of Vice-Chairman to Bhopal on 4.1.1989.
Actually in 1989 he was stationed at Hyderabad. Similarly
much has been read into the note, discuss, made on 6.3.1991.
As explained by R.P.Kapoor in his submissions before this
Court that he desired to discuss the matter as he had some
doubt in regared to the vacancy position which, as the
subsequent note of the Secretary, GAD., would show, turned
out to be correct. So also much ado has been made about the
Law Secretary personally carrying the file to Patna where
the Chief Justice of Madhya Pradesh was then camping. There
was urgency for the clearance of the file because of the
time-frame set by judicial orders. It is wrong to read in
this visit any oblique motive. The Law Secretary in his
capacity as a member of the Committee was deputed to go to
Patna so that he may be able to apprise the Chief Justice of
the proposal and explain any matter on which the latter
would need clarification. It is wrong to infer that the Law
Secretary felt obliged to R.P. Kapoor because the latter had
not recommended the former’s name but the recommendation had
come from the then Chief Minister. Even if in normal course
of business R.P.Kapoor had in fact recommended his name as a
part of his duty, that should not make any difference.
Besides, it is clear from the affidavit of the Ex-Law
Secretary that he knew that his appointment was cleared by
the Government of India long before he proceeded to Patna.
There was, therefore, no question of his being under the
influence of R.P.Kapoor so as to affect his independent
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 ultimate appointment as
fraudulent. After all when the name of a Chief Secretary
about to retire is proposed for appointment, it is
impossible to think that the Chief Secretary would not know
about it, if the Chief Secretary pretends ignorance, no
court will accept the same as correct. Therefore, even if
the Chief Secretary had not endorsed the file, it would not
have made any difference. It was ultimately for the Cheif
Minister to take a decision which was to be approved by the
Governor as well as the Chief Justice of India. There is no
hint on record to infer that he had in any manner influenced
the decision of these functionaries. Therefore, merely
because he forwarded the file to the Chief Minister which he
was required to do as per the extant Rules of Business that
ought not to be construed as an act to influence the
decision of the aforesaid functionaries. Even without
signing the file in normal course of business, he could have
done the ‘goading and egging’ while pretending total
ignorance. We are, therefore, of the view that the High
Court read too much in this act of the Chief Secretary
R.P.Kapoor. This suspicion of the High Court unfortunately
coloured its vision resulting in it viewing each and every
action leading to his appointment with suspicion. These, in
brief, are a few aspects of the case which we have
highlighted to demonstrate how the High Court fell into an
error and misdirected itself causing miscarriage of justice.
We must undo this injustice by allowing this appeal and
setting aside the impugned judgment and order of the High
Court and giving appropriate directions as under.
The appellants should be allowed to resume their
office. Hence we direct that the appellants, as far as
possible, be allowed to resume their office unless any one
or more of them has or have retired. In case any of them
have since attained the age of retirement, the State will
treat them as on duty upto the date of retirement and work
out their retiral benefits accordingly. All the appellants
shall be entitled to arrears of pay and allowances from the
date of judgment of the High Court upto the date of
resumption of duty or date of retirement. The appeals
succeed accordingly and the original writ petition will
stand dismissed.
We are satisfied beyond any manner of doubt that the
petitions filed by the three police Inspectors were, to say
the least, motivated with a view to deriving personal
benefits and not in public interest. Their idea was to
paralyse the working of the Tribunal and benefit from the
delay at the cost of other litigants. Otherwise how were
they concerned with the legality of their appointments?
This, in our view, is a glaring case of abuse of the process
of the Court in the name of public interest. Can such
petitioners be allowed to get away unscathed? We think they
must be saddled with exemplary costs. We, therefore, direct
that each petitioner shall pay a sum of Rs.15,000/- by way
of costs. The amount of cost may be recovered from the
provident fund/gratuity or any other future monetary benefit
including pension or in ordinary course by executing the
order.