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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:

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

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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.

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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

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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

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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."

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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

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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

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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

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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

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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

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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

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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.