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CASE NO.:

Appeal (civil) 4106 of 2002

Appeal (civil) 4107 of 2002

Appeal (civil) 4404 of 2002

Review Petition (civil) 398 of 2002

PETITIONER:

V.K. Majotra

Shambhu Dayal

Union of India & Ors.

Gopal Singh

RESPONDENT:

Union of India & Ors.

Union of India & Ors.,

Shambhu Dayal & Ors.,

Union of India & Ors.

DATE OF JUDGMENT: 09/09/2003

BENCH:

R.C. Lahoti & Ashok Bhan.

JUDGMENT:

J U D G M E N T

BHAN, J.

This judgment shall dispose of Civil Appeal No. 4107 of 2002, Civil

Appeal No. 4404 of 2002 impugning the final order dated 9th April, 2002

passed by the High Court of Allahabad, Civil Appeal No. 4106 is directed

against the interim order dated 25th February, 2002 passed in the writ

petition while it was pending in the High Court and Writ Petition (C) No.

398 of 2002 filed under Article 32 of the Constitution of India by Shri Gopal

Singh, Administrative Member, Central Administrative Tribunal, Jodhpur

Bench, at Jodhpur, challenging the empaneling of Shri V.K.Majotra,

respondent No. 5 on the ground that he was not qualified to be chosen as

Vice-Chairman of Central Administrative Tribunal. The point raised in all

the cases being common, the same are taken up together for disposal.

The facts are:

Shambhu Dayal, appellant in Civil Appeal No. 4107 of 2002 filed

Writ Petition No. 8248 of 2002 in the High Court of Allahabad challenging

the panel prepared for the post of Vice-Chairman in various branches of the

Central Administrative Tribunal (hereinafter referred to as 'the Tribunal') in

India and seeking for preparation of a fresh panel. Empanelment of V.K.

Majotra, respondent No.5, was challenged on the ground that he was not

qualified to be chosen for the post of Vice-Chairman to the Tribunal. He

also impugned the constitutional validity of Explanation to Section 6 of the

Administrative Tribunals Act, 1985 (hereinafter referred to as 'the Act')

being ultra vires of the Constitution of India and inoperative.

By an interim order dated 25th February, 2002 the High Court being

prima facie of the opinion that only a sitting or retired High Court Judge or

an advocate who is qualified for appointment as a High Court Judge could

be appointed as Vice-Chairman of the Tribunal issued a direction that in the

panel already prepared for appointment of Vice-Chairman of various

Branches of the Tribunal and in future panels also only the person referred to

Section 6 (2) (a) of the Act could be appointed as the Vice-Chairman of the

Tribunal.

Aggrieved against the interim order of 25th February, 2002 Mr. V.K.

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Majotra filed Civil Appeal No. 4106 of 2002 in which leave was granted and

operation of the interim order dated 25th February, 2002 passed by the High

Court was stayed.

The writ petition was taken up for final disposal by the High Court on

9th April, 2002. Instead of disposing of the writ petition on the pleas raised

in the writ petition or the points raised by the counsel for the parties during

the course of the arguments, the High Court going completely off the tangent

went on to hold that the Vice-Chairman of the Tribunal should be from a

legal background and can only be a sitting or retired High Court Judge or an

advocate who is qualified for appointment as a High Court Judge. It was

held that in the instant panel prepared by the Government and in all future

panels only the person referred to in Section 6 (2)(a) of the Act can be

appointed as the Vice-Chairman of the various benches of the Tribunal. It

was also observed that there are number of Tribunals in the country like

CEGAT, Board of Revenue, Income Tax Appellate Tribunal etc., which

should have persons from a legal background as the presiding Judge to

maintain the confidence of the public. That the senior member of every

Tribunal must be a person with a legal background as presiding officer of the

Tribunal which would ensure compliance of the mandate of Article 50 of the

Constitution of India. A direction was issued to the authorities including

the Government to take speedy steps to ensure compliance of the judgment

and appoint as presiding Judge of every Tribunal a person with a legal

background so that the Tribunal may be independent and inspire confidence

of the public. If it is a single member bench, then the person must be from a

legal background. Registrar General of the High Court was directed to send

copies of the judgment to the Secretary, Law Department, Union of India,

the secretary Personnel and Appointment Department, Union of India, the

Cabinet Secretary of Union of India and to the Chief Secretary of the U.P.

Government as also to the Chairman of the CAT and other appropriate

authorities for due compliance.

Appeals have been filed by the Union of India, writ petitioner

Shambhu Dayal as well as V.K. Majotra, whose appointment was challenged

in the writ petition taking strong exception to the manner in which the

petition has been disposed of and the decision arrived at by the High Court.

It is contended that point on which the writ petition was disposed of was

neither raised in the pleadings nor argued before the High Court by any of

the parties to the writ petition; that point raised in the writ petition has

neither been adverted to or adjudicated upon by the High Court and that the

High Court was wrong in adopting such an approach. As to whether a

person not having judicial experience could be appointed as Vice-Chairman

of the Tribunal was not questioned in the writ petition. Similarly, vires of

Section 6(2) (b) (bb) and (c) were not challenged. High Court without

striking down the provisions of Section 6 (2) (b) (bb) and (c) has obliterated

them from the statute book by holding that henceforth the appointment to

the post of Vice-Chairman be made only from amongst the persons

mentioned in Section 6 (2) (a) of the Act. It is further contended that the

High Court did not stop at giving direction that the Vice-Chairman of CAT

should be from amongst the persons having judicial training but went a step

ahead to hold that CEGAT, Board of Revenue, Income Tax Appellate

Tribunal etc., which were not even remotely connected to the dispute in the

writ petition should also be manned by persons having judicial training and

no administrative member should be appointed as the presiding officer of

such a Tribunal. No notice had been issued to the concerned or the affected

parties. Such a direction is totally unsustainable in law being in violation of

principles of natural justice if not anything more. Lastly, it was contended

that the impugned judgment of the High Court runs contrary to the view

taken by this Court and therefore bad in law.

Counsel for the parties have been heard at length.

We have perused the pleadings of the writ petition and the counter

affidavits filed by the respondents before the High Court. Counsel for the

parties are right in submitting that the point on which the writ petition has

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been disposed of was not raised by the parties in their pleadings. The parties

were not at issue on the point decided by the High Court. Counsel for the

parties are also right in contending that the point raised in the writ petition

was neither adverted to nor adjudicated upon by the High Court. It is also

correct that vires of Section 6(2) (b) (bb) and (c) of the Act were not

challenged in the writ petition. The effect of the direction issued by the

High Court that henceforth the appointment to the post of Vice-Chairman be

made only from amongst the sitting or retired High Court Judge or an

advocate qualified to be appointed as a Judge of the High Court would be

that Sections 6 (2) (b) (bb) and (c) of the Act providing for recruitment to the

post of Vice-Chairman from amongst the administrative services have been

put at naught/obliterated from the statute book without striking them down

as no appointment from amongst the categories mentioned in clauses (b)

(bb) and (c) could now be made. So long as Section 6 (2)(b)(bb) and (c)

remains on the statute book such a direction could not be issued by the High

Court. With respect to the learned Judges of the High Court we would say

that the learned Judges have over stepped their jurisdiction in giving a

direction beyond the pleadings or the points raised by the parties during the

course of the arguments. The writ courts would be well advised to decide

the petitions on the points raised in the petition and if in a rare case keeping

in view the facts and circumstances of the case any additional points are to

be raised then the concerned and affected parties should be put to the notice

on the additional points to satisfy the principles of natural justice. Parties

cannot be taken by surprise. We leave the discussion here.

We are also in agreement with the submissions made by the counsel

for the appellants that the High Court exceeded its jurisdiction in issuing

further directions to the Secretary, Law Department, Union of India, the

secretary Personnel and Appointment Department, Union of India, the

Cabinet Secretary of Union of India and to the Chief Secretary of the U.P.

Government as also to the Chairman of the CAT and other appropriate

authorities that henceforth the appointment to the post of presiding officer

of various other Tribunals such as CEGAT, Board of Revenue, Income Tax

Appellate Tribunal etc., should be from amongst the judicial members

alone. Such a finding could not be recorded without appropriate pleadings

and notifying the concerned and affected parties.

The relevant provisions of Section 6 read as under:

"6. Qualifications for appointment of Chairman,

Vice-Chairman or other Members.- (1) A person

shall not be qualified for appointment as the Chairman

unless he â\200\223

(a) is, or has been, a Judge of a High Court; or

(b) has, for at least two years, held the office of

Vice-Chairman.

(2) A person shall not be qualified for appointment as

the Vice-Chairman unless he â\200\223

(a) is, or has been, or is qualified to be a Judge of a

High Court; or

(b) has, for at least two yeas, held the post of a

Secretary to the Government of India or any

other post under the Central or a State

Government carrying a scale of pay which is

not less than that of a Secretary to the

Government of India; or

(bb) has, for at least five yeas, held the post of an

Additional Secretary to the Government of

India or any other post under the Central or a

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State Government carrying a scale of pay which

is not less than that of an Additional Secretary

to the Government of India; or

(c) has, for a period of not less than three years,

held office as a Judicial Member or an

Administrative Member.

xxx xxx

(6) The Chairman, Vice-Chairman and every other

Member of Joint Administrative Tribunal shall,

subject to the terms of the agreement between the

participating State Governments published under sub-

Section (3) of Section 4, and subject to the provisions

of sub-section (7), be appointed by the President after

consultation with the Governors of the concerned

States.

Explanation.- In computing, for the purposes of this

Section, the period during which a person has held

any post under the Central or a State Government,

there shall be included the period during which he has

held any other post under the Central or a State

Government (including an office under this Act)

carrying the same scale of pay as that of the first

mentioned post or a higher-scale of pay.

(7) No appointment of a person possessing the

qualifications specified in this Section as the

Chairman, a Vice-Chairman or a Member shall be

made except after consultation with the Chief Justice

of India."

Reading of the above provisions make it clear that Chairman can be

appointed under Section 6 (1) (a) from amongst the sitting or retired Judges

of the High Court or if he has held the office of Vice-Chairman for two

years. The eligibility for the appointment of Vice-Chairman is provided in

clauses (b) (bb) and (c) of Section 6 (2). Clause (a) provides that

appointment can be made of a person who is or has been or is qualified to

be a Judge of a High Court; Clause (b) provides that a person has for at

least two yeas, held the post of a Secretary to the Government of India or

any other post under the Central or a State Government carrying a scale of

pay which is not less than that of a Secretary to the Government of India;

Clause (bb) provides that a person has, for at least five yeas, held the post of

an Additional Secretary to the Government of India or any other post under

the Central or a State Government carrying a scale of pay which is not less

than that of an Additional Secretary to the Government of India; and Clause

(c) provides that a person has, for a period of not less than three years, held

office as a Judicial Member or an Administrative Member.

Administrative Tribunals Act was enacted in the year 1985 by the

Parliament under Article 323-A of the Constitution. Constitutional validity

of this Act was challenged and upheld by the Constitution Bench of this

Court in S.P. Sampath Vs. Union of India & Ors., 1987 (1) SCC 124. Vires

of the provisions of the Act other than Section 6(1) (c) were upheld. Section

6(1) (c) provided that Secretary to the Government of India could be

appointed as Chairman of the Tribunal. It was directed that Section 6(1) (c)

be omitted from the statute. This observation of the Court was accepted and

Section 6(1)(c) of the Act was later on deleted from the statute. As to sub-

section (a), (b), (bb) and (c) of Section 6(2) for the appointment of

Chairman/Vice-Chairman and other members from amongst the

administrative services it was observed (vide para 21) in the lead judgment

of the Ranganath Misra, J.:

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"â\200¦We do not want to say anything about Vice-Chairman

and members dealt with in sub-sections (2), (3) or (3-A)

because so far as their selection is concerned, we are of

the view that such selection when it is not 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.

Once the qualifications indicated for appointment of

Chairman are adopted and the manner of selection of

Vice-Chairman and members is followed, are inclined to

think that the manning of the Tribunal would be proper

and conducive to appropriate functioning. We do not

propose to strike down the prescriptions containing

different requirements but would commend to, the

Central Government to take prompt steps to bring the

provisions in accord with what we have indicated. We

must state that unless the same be done, the Constitution

of the Tribunal as a substitute of the High Court would be

open to challenge. We hasten to add that our judgment

shall operate prospectively and would not affect

appointments already made to the offices of Vice-

Chairman and member - both administrative and

judicial."

Observations to the same effect were made by Bhagwati, CJ in his

separate but concurring judgment. It was held that there should be no

preponderance of administrative members in the Tribunal and the Tribunal

should consist of one judicial member and one administrative member on

any bench. That the presence of the administrative member would provide

input of practical experience in the functioning of the services. The Bench

directed that the selection of Vice-Chairman and the other members from the

administrative services should be made by a high powered committee with a

sitting Judge of the Supreme Court to be nominated by the Chief Justice of

India which would ensure selection of proper and competent people to man

these high offices of trust and help to build up reputation and acceptability of

the Tribunal.

The question as to whether the members of the administrative services

could be appointed as members of the Central Administrative Tribunal or

Vice-Chairman was answered in the affirmative. Vires of Section

6(2)(a)(b)(bb) and (c) were upheld.

This question was again considered in L. Chandra Kumar Vs. Union

of India, 1997 SCC 261, by a Seven-Judge Constitution Bench. In this case

as well an argument was raised that the appointment of Administrative

Members to Administrative Tribunals be stopped. The Court observed that

it was difficult to accept such a contention since setting up of these Tribunals

is founded on the premise that specialist bodies comprising of both trained

administrators and those with judicial experience would by virtue of their

specialised knowledge be better equipped to dispense speedy and efficient

justice. The Court held:

"We are also required to address the issue of the

competence of those who man the Tribunals and the

question of who is to exercise administrative supervision

over them. It has been urged that only those who have

had judicial experience should be appointed to such

Tribunals. In the case of Administrative Tribunals, it has

been pointed out that the Administrative Members who

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have been appointed have little or no experience in

adjudicating such disputes; the Malimath Committee has

noted that at times IPS Officers have been appointed to

these Tribunals. It is stated that in the short tenures that

these Administrative Members are on the Tribunal, they

are unable to attain enough experience in adjudication

and in cases where they do acquire the ability, it is

invariably on the eve of the expiry of their tenures. For

these reasons, it has been urged that the appointment of

Administrative Members to Administrative Tribunals be

stopped. We find it difficult to accept such a contention.

It must be remembered that the setting up of these

Tribunals is founded on the premise that specialist bodies

comprising both trained administrators and those with

judicial experience would, by virtue of their specialised

knowledge, be better equipped to dispense speedy and

efficient justice. It was expected that a judicious mix of

Judicial members and those with grassroots experience

would best serve this purpose. To hold that the Tribunal

should consist only of Judicial Members would attack the

primary basis of the theory pursuant to which they have

been constituted. Since the Selection Committee is now

headed by a Judge of the Supreme Court, nominated by

the Chief Justice of India, we have reason to believe that

the Committee would take care to ensure that

Administrative Members are chosen from amongst those

who have some background to deal with such cases."

From the above observations, it is clear that this Court held that

it was not desirable to stop the appointment of members of administrative

services as administrative members to the Tribunal. Rather the judicious

mix of Judicial Members and those with grassroot experience would serve

the purpose better for which the Tribunals were created. Contention that

Tribunal should consist only of Judicial members was rejected and it was

held that such a direction would attack the primary basis of the theory

pursuant to which the Tribunals were constituted. It was observed that a

Selection Committee which was headed by a sitting Judge of the Supreme

Court would ensure that Administrative Members would be chosen from

amongst those who had the requisite background to deal with the cases

coming up before the Tribunal.

In view of the observations of this Court in S.P. Sampath and

L. Chandra Kumar cases (supra ) the High Court was not right in observing

that henceforth the appointment of Vice-Chairman should be made from

amongst the persons mentioned in of Section 6 (2) (a) of the Act alone. The

findings recorded by the High Court run contrary to the law laid down by

this Court.

For the reasons stated above, the Civil appeals are accepted, the

interim order dated 25th February, 2002 which merged with the final order

dated 9th April, 2002 passed by the High Court are set aside. The stay

granted by the High Court is vacated. The authorities would be at liberty to

make appointment as per selection made which would of course be subject

to the final result of the writ petition by the High Court.

Since the High Court did not decide the inter se dispute between writ

petitioner Shri Shambhu Dayal and Shri V.K. Majotra, respondent No. 5 in

the writ petition, we remit the case back to the High Court for decision in

accordance with law. We would request the High Court to dispose of the

matter at an early date and if possible within four months from the date of

receipt/production of a certified copy of this judgment.

Since we are not deciding the dispute on merits and remitting the case

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back to the High Court for appropriate decision we refrain to go into merits

of the dispute in writ petition No. 398 of 2002 and dismiss the same with

liberty to the petitioner to approach the High Court, if so advised.

Shri D.C. Verma, Respondent No. 4 in the Writ Petition, is a Judicial

Member of the Tribunal. Counsel for the parties are agreed that no relief has

been claimed in the writ petition against him and he be deleted from the

array of the parties. Accordingly the name of Shri D.C. Verma be deleted

from the array of the parties in the writ petition. He is not required to appear

before the High Court henceafter.

Appeals are allowed. No costs.