Hon'ble Ajai Kumar Srivastava-I,J.
These proceedings under Article 226 of the constitution of India have been instituted assailing the decision of the Competent Authority of the Central Government, whereby the proposal of Department of Personnel and Training (hereinafter referred to as "DoPT") for denial of extension of term of appointment of the petitioner as Judicial Member in Central Administrative Tribunal (hereinafter referred to as "CAT") has been approved. This decision has been taken in purported compliance of the judgment and order dated 08.05.2019 passed by this Court in Writ Petition No.6640 (S/B) of 2017.
Challenge herein has also been made to the communication dated 24.10.2019 made by the DoPT whereby it has been informed that the matter relating to extension of term of appointment of the petitioner was placed before Appointments Committee of the Cabinet (herein after referred to as "ACC") and the ACC has approved the denial of extension of the term of the petitioner for another term as Judicial Member of CAT.
Heard Shri Anil Kumar Tiwari, learned Senior Advocate, assisted by Shri Aditya Tewari for the petitioner and Shri S. B. Pandey, learned Assistant Solicitor General of India along with Shri Raj Kumar Singh, for the respondents. We have also perused the original records, which have been produced before us by the learned counsel representing the respondents.
Learned Senior Advocate has argued that the impugned decision and the resultant communication are completely illegal and erroneous for the reason that in the present case it is revealed that the ACC did not take independent decision in the matter and as a matter of fact, the decision taken by the ACC was vitiated for the reason that it was based on the recommendation of the DoPT which procedure is not available in the rules governing the extension of term of appointment of a member of CAT. It has further been argued that since the rules governing the extension of term of a member of CAT do not envisage any recommendation to be made by the DoPT as such the procedure adopted in this case for arriving at the impugned decision is not only alien to the scheme of the rules but this recommendation is a material which is extraneous and thus could not have been considered. Further, learned Senior Advocate has stated that, in fact, as per the scheme of the rules governing the extension of term of a member of CAT, it is only the recommendation of the Selection Committee to be headed by none other than a sitting Judge of the Supreme Court and the views of the Hon'ble Chief Justice of India along with any other material which may have some bearing and reflection on the candidature of the person concerned, can be taken into account and since in this case it is the recommendation/proposal submitted by the DoPT for denying the extension of term of appointment of the petitioner which has been approved as such the decision making process adopted by the ACC to arrive at the impugned decision is erroneous and against the provisions contained in the rules.
Shri Tiwari, learned Senior Advocate has also submitted that the exercise undertaken by the Secretariat of the ACC by inviting the proposal/recommendation from the DoPT is even against the mandate of the judgment and order dated 08.05.2019 passed by this Court in the earlier Writ Petition filed by the petitioner, namely, writ petition No.6640 (S/B) of 2017. He has further submitted that the reasons which can be culled out for denying the extension of term of the appointment of the petitioner in this case are in fact non-existent, in asmuchas the proposal submitted by the DoPT to the ACC for denying the extension of term of the appointment of the petitioner only makes mention of three additional complaints which were already examined by this Court in its judgment dated 08.05.2019 and were found not to be adverse to the petitioner's candidature. In this view the submission is that even the proposal submitted by the DoPT on which the approval by the ACC is said to have been accorded, is based on non-existent material which can reflect upon the candidature of the petitioner adversely or is in any manner not befitting to the nature of the office for which extension of term was considered. Lastly, it has been argued by the learned Senior Advocate that in case this Court comes to the conclusion that this petition deserves to be allowed, instead of remitting the matter to the Competent Authority i.e. the ACC, appropriate direction for extension of term of the appointment of the petitioner may be issued by this Court itself.
It has been stated that since in the present case Selection Committee had recommended for extension of term of appointment of the petitioner which was concurred by the then Hon'ble Chief Justice of India, as such in view of the law laid down by Hon'ble Supreme Court in the case of R. S. Mittal vs. Union of India, reported in [1995 Supp (2) SCC 230], such recommendation ought to have been approved unless there was some justifiable reason to decline the same. Reliance has also been placed on behalf of the petitioner on the judgment of the Apex Court in the case of Union of India and others vs. Kali Dass Batish, reported in [2006 (1) SCC 779] to bring home the ground that if the legislature has reposed faith in the Chief Justice of India as the pater familias of the Judicial hierarchy, it would normally not be open to contend for any one that the Chief Justice of India might have given his concurrence without application of mind or without calling for necessary inputs.
In support of the submission that this Court is fully competent and well within its jurisdiction to pass appropriate orders and to give appropriate direction in the facts and circumstances of the case, instead of remitting the matter to the Competent Authority, reliance has been placed by the learned counsel appearing for the petitioner on the judgments in the case of (i) State of Bihar vs. Dr. Braj Kumar Mishra and others, reported in [1999 (9) SCC 546], (ii) Comptroller and Auditor General of India, Gian Prakash, New Delhi and another vs. K. S. Jagannathan and another, reported in [1986 (2) SCC 679], and (iii) Badri Nath Vs. State of Tamil Nadu and others, reported in [(2000) 8 SCC 395]. Reliance has also been placed on the judgment of Hon'ble Supreme Court in the case of Major General H. M. Singh, VSM vs. Union of India and another, reported in [(2014) 3 SCC 670) to emphasize the argument that respondents cannot be said to be justified in taking the impugned decision as the same is not justifiable by the reasons in support thereof. It has also been argued that if any statutory authority takes a decision on the suggestion or at the behest of an extraneous authority, the same would be vitiated. In support of this submission reliance has been placed on the judgment in the case of Bahadursinh Lakhubhai Gohil vs. Jagdishbhai M. Kamalia and others, reported in [(2004) 2 SCC 65], Mohinder Singh Gill and another vs. The Chief Election Commissioner and others, reported in [(1978) 1 SCC 405.
Shri S. B. Pandey, learned Assistant Solicitor General of India, who has ably been assisted by Shri Raj Kumar Singh has countered the submissions made by the learned counsel appearing for the petitioner and has submitted that the decision of the ACC which is under challenge herein, has been taken strictly in accordance with law and that there is no deviation therefrom. He has further submitted that the ACC was well within its competence to have called for inputs available with the DoPT for the purposes of arriving at a correct conclusion in respect of the candidature of the petitioner who was seeking extension of his term of appointment and if the recommendation/proposal of the DoPT is viewed in this perspective, the impugned decision whereby the ACC has accorded its approval cannot be faulted with. He has further stated that earlier, recommendation made by the Selection Committee was returned back and thereafter the entire matter was placed before the Selection Committee which took a decision to carry forward the vacancy against which petitioner's term for extension of appointment was being considered to the vacancies pertaining to the year 2017 and this decision of the Selection Committee was also concurred by the Chief Justice of India on 06.04.2017, as such the matter at that point of time itself became final and stood closed. His further submission is that the proposal made by the DoPT which has been approved by the ACC, thus, cannot be termed to be a recommendation or material extraneous to the procedure prescribed in the Rules; it should rather be treated to be only an input provided by the DoPT to aid the ACC to take a decision as per the requirement of Rule 9(4) of Administrative Tribunals (Procedure for Appointment of Members), Rules 2011 as amended in the year 2014 vide notification dated 21.03.2014. In his submission, the learned counsel representing the respondents has stated that the writ petition is highly misconceived which deserves to be dismissed.
We have given our anxious consideration to the rival submissions made by the learned counsel appearing for the respective parties and have, as observed above, also perused the original record as produced by Shri Raj Kumar Singh, learned counsel representing the Union of India.
Before adverting to the submissions made by the learned counsel representing the parties, we may note certain facts which are not in dispute. The DoPT, Government of India, vide communication dated 19.05.2011 informed the petitioner that his name was approved by the Competent Authority for appointment to the post of Judicial Member in the CAT and accordingly by the said communication, offer of appointment against the vacancy pertaining to second half year of 2010 was conveyed to the petitioner. The petitioner accepted the offer and accordingly he was appointed as Judicial Member of CAT vide order dated 30/31.05.2011 and was posted at Calcutta Bench of the Tribunal. Subsequently he was, however, transferred to Lucknow Bench of the Tribunal. As per the appointment order dated 30/31.05.2011 the petitioner was appointed for a period of five years from the date of his assumption of charge or till the age of 65 years, whichever was earlier. The petitioner in terms of the said order dated 30/31.05.2011 was to complete the term of appointment of five years in the month of May, 2016. However, in terms of the provisions contained in the Rules governing the extension of term of appointment of the Members of CAT, the Chairman of CAT made a recommendation to the Selection Committee for extension of the term of the petitioner. The said recommendation was considered by the Selection Committee constituted in terms of the relevant rules which made a recommendation in favour of the petitioner for extension of his term. The said recommendation of the Selection Committee was sent for orders of the Competent Authority together with the views of the Hon'ble Chief Justice of India. The record produced before us as also the counter affidavit filed by the respondents reveal that the Selection Committee had made recommendation in favour of extending the term of the petitioner as Member of CAT and the views of Hon'ble the Chief Justice of India were also expressed in favour of extension of his term.
It appears that since no decision on the recommendation made by the selection committee together with the views of the Chief Justice of India was communicated to the petitioner, he instituted a writ petition before this Court, namely, Writ Petition No.6640 (S/B) of 2017 wherein initially a prayer was made to issue necessary order for extension of his term in furtherance of the recommendations of the Selection Committee. When the counter affidavit in the said writ petition was filed and it was intimated through counter affidavit to the petitioner that vide Office Memorandum dated 06.03.2017 the Competent Authority in the ACC has returned the proposal for extension of his term, the petitioner moved an amendment application in the writ petition seeking quashing of the said Office Memorandum. By the counter affidavit filed in the earlier writ petition, a communication dated 12.04.2017 from DoPT was also brought to the notice of the petitioner whereby it was informed that the Competent Authority had returned the proposal of extension of term of appointment of the petitioner and that the same was placed before the Selection Committee for consideration whereupon the selection committee recommended to carry forward the vacancy against which the extension of the term of appointment of the petitioner was sought, to vacancies of the year 2017. The said decision for carrying forward the vacancy to the year 2017 contained in the communication dated 12.04.2017 was also challenged by the petitioner by amending the Writ Petition No.6640 (S/B) of 2017. At this juncture itself we may notice that the decision/recommendation of the Selection Committee for carrying forward the vacancies to the year 2017, was concurred by Hon'ble the Chief Justice of India on 06.04.2017.
Writ Petition No.6640 (S/B) of 2017 was decided by a Division Bench of this Court vide judgment and order dated 08.05.2019. The said judgment was furnished to the DoPT by the petitioner for compliance which, according to the averments made in the counter affidavit filed by the respondents, was sent to the ACC Secretariat on 04.06.2019 for taking further necessary action in the matter. The counter affidavit further states that the ACC Secretariat vide Office Memorandum dated 14.06.2019 desired the DoPT to convey its specific recommendation/views on the proposal for extension of term of the appointment of petitioner before the ACC for consideration. Pursuant to the said Office Memorandum dated 14.06.2019 issued by the ACC Secretariat, the DoPT sent the proposal to the ACC Secretariat on 23.08.2019 for orders of the Competent Authority purportedly under Rule 9(4) of Administrative Tribunals (Procedure for Appointment of Members), Rules 2011 as amended in the year 2014. It is this approval accorded by the ACC to the proposal of the DoPT for denying the extension of the term of the petitioner which is under challenge in this writ petition.
For proper adjudication of the issues involved in this writ petition, it would be appropriate to make a mention of certain provisions contained in the Administrative Tribunals Act and the relevant Rules. Sub section 3 of section 6 of the Act provides that the Chairman and every other Member of the Central Administrative Tribunal shall be appointed after consultation with the Chief Justice of India, by the President. Section 8(2) of the said Act provides that a Member of the Tribunal shall hold office for a term of five years from the date he enters upon his office and such term is extendable by one more term of five years. It further provides that no Member shall hold office after he has attained the age of 65 years. Thus, section 8(2) of the said Act permits extension of term of appointment of a Member of the CAT subject to the condition that such extension would not be permissible after the Member concerned attains the age of 65 years. Section 6(3) and Section 8(2) of the Administrative Tribunal Act, 1985 are extracted herein below:
"Section 6(3):- The Chairman and every other Member of the Central Administrative Tribunal shall be appointed after consultation with the Chief Justice of India by the President.
Section 8(2): A Member shall hold office as such for a term of five years from the date on which he enters upon his office extendable by one more term of five years."
Provided that no Member shall hold office as such after he has attained the age of 65 years.
The Central Government in exercise of its power vested in it by section 36 of the Administrative Tribunals Act, 1985 has framed rules which govern the procedure for appointment of Members of the Tribunal. The Rules also govern extension of term of appointment of a Member of CAT. These rules are known as Administrative Tribunals (Procedure for Appointment of Members), Rules 2011. The said Rules, 2011 were amended by the Central Government vide notification dated 21.03.2014 and the amending Rules are called as the Administrative Tribunal (Procedure for Appointment of Members) Amendments Rules, 2014 (hereinafter referred to as "the Amendment Rules 2014"). The Rules notified on 30.12.2011 are extracted herein below:
G.S.R.923(E).--In exercise of powers conferred by clause (c) of Section 36 of the Administrative Tribunals Act, I985 (13 of 1985) and in supersession of the Administrative Tribunals (Procedure for appointment of Vice-Chairmen and Members) Rules, 2006, except as respects thing done or omitted to be done before such supersession. The Central Government hereby makes the following rules, namely:-
1. Short title and commencement.-(1) These rules may be called the Administrative Tribunals (Procedure for appointment of Members) Rules, 2011.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. Definition.- In these rules, unless the context otherwise requires,-
(a). "Act"means the Administrative Tribunals Act, 1985 (13 of1985) ;
(b) "Section' means a section of the Act;
(c) "Tribunal" means the Central Administrative Tribunal in relation to the Central and the State Administrative Tribunal in relation to a State.
3. Composition of the Selection Committee.
(1) For Selection of Members of the Central Administrative Tribunal. There shall be a Selection Committee for the purpose of selection of the Members of the Central Administrative Tribunal consisting of the following namely,
(i) A sitting Judge of the Supreme Court nominated by the Chief Justice of India-Chairman:
(ii) Chairman, Central Administrative Tribunal-Member:
(iii) Secretary to the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training)-Member:
(iv) Secretary to the Government of India, Ministry of Law and Justice (Department of Legal Affairs)-Member:
(2) For selection of Members of the State Administrative Tribunals-There shall be a Selection Committee of the concerned State Government for the purpose of selection of Members of the concerned State Administrative Tribunal consisting of the following, namely,
(i) Chief Justice of the High Court of the concerned State-Chairman:
(ii) Chief Secretary of the concerned State Government-Member:
(iii) Chairman of the State Administrative Tribunal of the concerned State-Member:
(iv) Chairman of Public Service Commission of the concerned State-Member:
4. Vacancies.- The anticipated vacancies of Members that is those arising between January to December of the each calendar year shall be placed before the Selection Committee and the Chairman of the Administrative Tribunal concerned shall indicate the number of vacancies of Members to be filled from the judicial stream and the administrative stream respectively whereupon the procedure to fill up the vacancies accordingly, shall be initiated by the Department of Personnel and Training of the Central Government or the Department concerned of' the State Government, as the case may be.
5. Procedure for inviting applications and processing of candidates: (1) Central Administrative Tribunal.
(i) The Selection Committee referred to in sub rule (l) of Rule 3 shall devise its own procedure or lay down the guidelines for inviting applications and for the selection of Members of the Central Administrative Tribunal.
(ii) The Selection Committee shall recommend persons for appointment as Members from amongst the persons on the list of candidates prepared by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training after writing to the various cadres controlling authorities.
(iii) The Central Government, shall after taking into consideration the recommendations of the Selection Committee, and in consultation with the Chief Justice of India in accordance with the provisions contained in sub-section (3) of section 6, make a final list of persons for appointment as Members of the Central Administrative Tribunal.
(2) State Administrative Tribunal:-
(i) The Selection Committee referred to in sub rule (2) of Rule 3 the concerned Stat Government shall devise its own procedure or lay down guidelines for inviting applications and for the selections of the Members of Administrative Tribunal of the State concerned.
(ii) The Selection Committee shall recommend persons for appointment as Members from amongst the persons on the list the candidates prepared by the Chief Secretary or Secretary, General Administration Department or Personnel Department of the State Government after writing to the various cadre controlling authorities of the State.
(iii) The State Government shall after taking into consideration the recommendations of the Selection Committee make a list of persons selected and send the same with its recommendations to the Central Government who shall in consultation with the Chief Justice India and in accordance with the provisions contained in sub section (4) of Section 6, appoint Members of the Administrative Tribunal of the State concerned.
(6) Meetings of the Selection Committee.- (1) The Selection Committee shall normally hold its meeting at New Delhi in the case of the Central Administrative Tribunal and at the State capital of the State concerned in the case of the State Administrative Tribunal or at such other place as may be decided by the Chairman of the concerned Selection Committee by recording the reasons for the change of the venue the Committee.
(2) The notice or Agenda as the case may be, for meeting of the Selection Committee shall be issued in advance.
3. The date and venue for the meeting shall be fixed in consultation with the Chairman of the Committee.
4. The quorum for the meeting at a Selection Committee shall be the Chairman and at least one other Member.
7. Consultation with the Chief Justice of India.- (1) For selection of a Member of the Central Administrative Tribunal the Chief Justice of India shall be consulted in accordance with the provisions of sub-section (3) of Section 6 and the recommendation of the Selection Committee referred to in sub-rule (1) of rule 3 shall accordingly be placed before him for his views.
(2) The recommendations of the Selection Committee, together with the views of the Chief Justice of India shall be submitted to the Competent Authority for orders:
8. Consultation with the Governor.- (1) For selection of a Member of State Administrative Tribunal the Governor of the concerned State shall be consulted by the State Government and for this purpose the recommendations of the Selection Committee referred to in sub rule (2) of rule 3 shall be placed before him.
(2) After consulting the concerned Governor under sub rule (1) the recommendations of the Selection Committee together with the views of the Governor shall be forwarded to the Central Government and that Government shall seek the orders of the competent authorities."
The Amendment Rules 2014 are also extracted herein below:
"MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS (Department of Personnel and Training) NOTIFICATION New Delhi, the 21st March, 2014 G.S.R. 205 (E).--In exercise of the powers conferred by clause (c) of section 36 of the Administrative Tribunals Act, 1985 (13 of 1985), the Central Government hereby makes the following rules further to amend the Administrative Tribunals (Procedure for Appointment of Members) Rules, 2011, namely:-
1. (1) These rules may be called the Administrative Tribunals (Procedure for appointment of Members) Amendment Rules, 2014.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Administrative Tribunals (Procedure for appointment of Members) Rules, 2011 (hereinafter referred to as the said rules), in rule 7 after sub-rule (1), the following sub-rule shall be inserted, namely:--
"(1A) For selection of a Member of the State Administrative Tribunal, the Chief Justice of India shall be consulted in accordance with the provisions of sub-section (4) of section 6 and the recommendations of the Selection Committee referred to in sub-rule (2) of rule 3 shall accordingly be placed before him for his views".
3. In the said rules, after rule 8, the following rules shall be inserted, namely:--
"9. Extension of term of appointment of Member of the Central Administrative Tribunal.--(1) The Chairman of the Central Administrative Tribunal may recommend the names of the Members with justification for extension of their term of appointment to the Central Government in accordance with the provisions of sub-section (2) of section 8.
(2) The proposal of the Chairman of the Tribunal shall be placed before the Selection Committee referred to in sub-rule (1) of rule 3 and the Selection Committee may make recommendations for extension of term of appointment of such Members to the Central Government.
(3) The Chief Justice of India shall be consulted in accordance with the provisions of sub-section (3) of section 6 and the recommendation of the Selection Committee referred to in sub rule (1) of rule 3 shall accordingly be placed before him for his views.
(4) The recommendations of the Selection Committee, together with the views of the Chief Justice of India shall be submitted to the Competent Authority for orders.
10. Extension of term of appointment of Member of the State Administrative Tribunal.--(1) The Chairman of the State Administrative Tribunal may recommend the names of the Members with justification for extension of their term of appointment to the concerned State Government in accordance with the provisions of sub-section (2) of section 8.
(2) The proposal of the Chairman of the Tribunal shall be placed before the Selection Committee referred to in sub-rule (2) of rule 3 and the Selection Committee may make recommendations for extension of term of appointment of such Members to the State Government concerned.
(3) The Governor of the concerned State shall be consulted by the State Government and for this purpose the recommendation of the Selection Committee referred to in sub-rule (2) of rule 3 shall be placed before him.
(4) After consulting the concerned Governor under sub-rule (3), the recommendations of the Selection Committee together with the views of the Governor shall be forwarded to the Central Government and that Government after consulting the Chief Justice of India shall seek the orders of the competent authorities."
By introducing 2014 Amendment Rules, Rule 9 in 2011 Rules was added which provides for procedure for extension of term of appointment of Members of Tribunal. Rule 9 contains the entire scheme of consideration of extension of term of appointment of Members, according to which the process is initiated by the Chairman of the Tribunal. Rule 9(1) provides that the Chairman of the CAT may recommend the names of the Members with justification for extension of their term of appointment to the Central Government in accordance with the provisions of Section 8(2). As per sub rule 2 of rule 9, the proposal of the Chairman of the Tribunal is to be placed before the Selection Committee constituted under Rule 3(1) whereupon the Selection Committee is to make recommendation for extension of term of appointment to the Central Government. Once such recommendation by the Selection Committee is made for extension of term of appointment of a Member, under Rule 9(3) the Chief Justice of India is to be consulted in accordance with the provisions of section 6 (3) of the Act. The recommendations made by the Selection Committee are to be placed before the Chief Justice of India for his views. Sub rule 4 of rule 9 provides that the recommendation of the Selection Committee along with the views of the Chief Justice of India are to be submitted to the Competent Authority for orders. At this very juncture, we may point out that the Competent Authority in such matters as per the Government of India (Transaction of Business) Rules, framed under Article 77(3) of the Constitution of India, is the Appointments Committee of the Cabinet (ACC). We may also notice the composition of the Selection Committee in terms of Rule 3(1) of the Rules 2011, according to which such Selection Committee is to comprise of a sitting Judge of Supreme Court of India to be nominated by the Chief Justice of India, who is its Chairman. The Selection Committee also comprises of the Chairman, CAT, who is its Member, Secretary to the Government of India in the Ministry of Personnel and Public Grievances (Department of Personnel and Training), who is its second Member and Secretary to the Government of India in the Ministry of Law and Justice, Department of Legal Affairs, who is also a Member of the Selection Committee.
The composition of the Selection Committee as prescribed in Rule 3(1) of the Rules, 2011 thus makes it clear that it comprises of persons holding high offices in the Government as also holding constitutional office of the Judge of the Supreme Court of India. The sanctity and significance attached to such selection is highlighted by the composition of the Selection Committee as also the provision which requires consultation by the Chief Justice of India. The recommendation, thus, made by such high powered Selection Committee on account of the very nature of its composition itself are, thus, to be kept and treated at a very pedestal and thus we have no hesitation to observe that such recommendation by any such high powered Selection Committee along with views of the Hon'ble the Chief Justice of India cannot be negated in absence of any justifiable reason by any authority.
As observed above, the very composition of the Selection Committee itself attaches sanctity and purity to its recommendations. In this case, the fact that the Selection Committee had already recommended for extension of term of appointment of the petitioner with the concurrence of the Chief Justice of India has not been denied.
Thus, for the reasons aforesaid, unless we find some justifiable reason for not accepting such recommendation by the Competent Authority, the decision denying petitioner's extension of term of his appointment, in our considered opinion, would be illegal and vitiated.
While examining the reasons which form the proposal submitted by the DoPT denying the extension of the petitioner which was approved by the Competent Authority (ACC) we need to refer to the averments made in paragaraph 15 of the counter affidavit filed by the respondents. Para 15 of the said counter affidavit is extracted herein below:
"15.That it is pertinent to state that the proposal of DoPT for seeking the approval of ACC (Competent Authority) with regard to denial of extension of tenure of the petitioner was based on the fact that the Search cum Selection Committee, on placing before it the decision dated 06.03.2017 of the ACC regarding returning the proposal, recommended for carrying forward of those two vacancies to the next vacancy year and the same was also concurred by the Hon'ble CJI. Besides this, three more complaints were received against Shri Navneet Kumar. Although those complaints could not be verified due to non coming forward of the complainants but it is well accepted that the Judicial Authority not only should be fair but should look to be fair and unblemished also in his conduct and must uphold the highest standards of integrity to keep trust of public."
For culling out the reason, if any, which can be said to be available to the respondents for denying the extension of term of appointment of the petitioner, we may also refer to the Office Memorandum dated 14.06.2019, issued from the Secretariat of ACC, whereby the DoPT was required to convey its recommendation/proposal. In the said Office Memorandum dated 14.06.2019 what we find recited is that, "the Departments have not provided their specific recommendation/views on the order dated 08.05.2019 of the High Court of Allahabad, Lucknow Bench, Lucknow in Writ Petition No.6640 (S/B) of 2017: Navneet Kumar vs. Union Of India Through Secy. Personnel & Training & Anr". The said Office Memorandum further recites that, "the Departments are accordingly requested to convey their specific recommendations/views on the proposal along with approval of the Minister Incharge for placing the same before ACC for consideration".
We may also examine at this juncture itself the proposal submitted by the DoPT vide Office Memorandum dated 23.08.2019 pursuant to the Office Memorandum dated 14.06.2019. The said Office Memorandum, as is available on record placed before us by the learned counsel representing the Union of India, only recites the order of this Court dated 09.05.2019 and thereafter reproduces sub rule 4 of rule 9 of Rules 2011 as amended in 2014 and then it states that "three complaints were received from different quarters in DoPT against Shri Navneet Kumar. While the proposal for extension of tenure for his second term along with the status of those three complaints was still under consideration of ACC, three more complaints were received by the DoPT". This proposal further recites that, " although those complaints could not be verified due to non coming forward of the complainants, but it is a fact that these three complaints were received by the Government thereby casting a shadow on the working of the Hon'ble Member". The proposal also recites that, "it is well accepted that the Judicial Authority should not only be fair but should look to be fair also in his conduct and must uphold the highest standards of integrity to keep trust of public." Accordingly the proposal states that "keeping all in this view the Competent Authority decided not to recommend the officer for the said extension". The said Office Memorandum dated 23.08.2019 records its proposal as " issue of order conveying the decision of the ACC with regard to denial of extension of tenure in respect of Shri Navneet Kumar in compliance of the direction dated 09.05.2019 of Hon'ble High Court of Allahabad (Lucknow Bench)".
What we thus find from the above recorded facts is that once the order passed by this Court was submitted before the ACC, its Secretariat directed the DoPT to furnish its recommendation in respect of extension of term of appointment of the petitioner vide Office Memorandum dated 14.06.2019 whereupon vide Office Memorandum dated 23.08.2019 DoPT submitted its recommendation/proposal which is negatively worded and is based upon only one reason that is the complaints said to have been received against the petitioner. What we also notice from a perusal of the averments made in paragraph 15 of the counter affidavit is that basis of proposal made by the DoPT vide Office Memorandum dated 23.08.2019 was the complaints as mentioned in the said Office Memorandum as also the decision of the Selection Committee dated 06.03.2017 whereby the vacancy against which the petitioner's extension of term of appointment was being considered, was carried forward to the vacancies of the year 2017 which was concurred by the Chief Justice of India.
We thus, now proceed to examine the reasons indicated in the proposal/recommendation of the DoPT on the basis of which the impugned decision by approving the said proposal has been taken by the ACC.
As regards the plea taken by the respondents based on the decision of the Selection Committee for carrying forward the vacancies to the year 2017, we may observe that it is noticeable that the said decision has been expressed in the letter/order dated 12.04.2017 which was challenged by the petitioner by way of seeking amendment in the earlier writ petition, namely, Writ Petition No.6640 (S/B) of 2017. The Court while deciding the aforesaid writ petition vide its judgment and order dated 08.05.2019 allowed the writ petition while quashing the orders challenged in the writ petition. Opening sentence of the decision dated 08.05.2019 passed by this Court makes a mention as to what was challenged in said writ petition and the challenge included challenge to the letter/order dated 12.04.2017. Thus, once the said decision contained in the letter/order dated 12.04.2017 was quashed by this Court vide its judgment and order dated 08.05.2019, the plea based on the decision of the Selection Committee for carrying forward the vacancies to the year 2017, in our considered opinion, is not available to the respondents. As a matter of fact the said decision could not be taken aid of by the respondents in view of the judgment dated 08.05.2019 passed by this Court, for denying the extension of term of the appointment of the petitioner as member of the Tribunal. Further, at this juncture itself it would be appropriate to note that in the earlier writ petition, namely, the Writ Petition No.6640 (S/B) of 2017 the decision of the Competent Authority which is contained in the Office Memorandum dated 06.03.2017 whereby the proposal for extension of term of appointment of the petitioner was returned back, has also been quashed by this Court while the said writ petition was allowed.
Now coming to the second reason as pleaded by the respondents relating to availability of certain complaints which finds mentioned in the proposal dated 23.08.2019 submitted by the DoPT on the basis of which the Competent Authority has taken a decision, what we notice is that it is apparent that the proposal dated 23.08.2019 contains a summary of all those complaints. The last three complaints are dated 16.06.2016, 04.07.2016 and 22.07.2016. In respect of all these complaints, the proposal dated 28.08.2017 itself observes that " although those complaints could not be verified due to non coming forward of the complaints". Thus, clearly the proposal dated 23.08.2019 had taken into account the complaints which were not verified. The remarks contained in respect of all six complaints, as are available in the proposal dated 23.08.2019, are summarized herein below:
Complaint No.1: "Complaint was forwarded to CAT and CAT informed that main grievance of the complainant was against the judicial proceeding of CAT in the case filed by him. In terms of section 32 of AT Act no suit, prosecution etc. was possible."
Complaint No.2: "Complaints were forwarded to CAT. CAT replied that they verified that the person who was statedly sending complaints was not there. As such these were pseudonymous."
Complaint No.3: "Complaint was forwarded to CAT. CAT replied that the applicant was praying for hearing of his case by Chairman, CAT instead of Shri Navneet Kumar, However, Chairman, CAT authorized other member to hear his case. Even then he was not satisfied."
Complaint No.4: "Complainant was asked to verify but no reply came."
Complaint No.5: "Complainant was asked to verify but no reply came."
Complaint No.6: "The complainant was asked to verify but no reply came."
Having extracted the remarks of DoPT on all six complaints against the petitioner, we may notice now that this Court while deciding the earlier writ petition, namely, Writ Petition No.6640(S/B) of 2017 had perused the original record which were produced at the time of hearing of the said matter and in its judgment dated 08.05.2019 the Court had observed that "even reference of certain complaints have been given but no finding on it adverse to the petitioner has been recorded". Accordingly, having regard to the nature of complaints available on record and also keeping in view the observations made by this Court in its order dated 08.05.2019 to the effect that nothing adverse to the petitioner was found in the complaints, in our considered opinion, the reliance placed by the respondents for arriving at the decision which is under challenge herein is not worth being accepted.
In the light of these facts stated in the foregoing paragraphs, what we conclude is that the DoPT while preparing the proposal on the basis of which the impugned decision has been taken by the Competent Authority, has not given due regard to the judgment and order dated 08.05.2019 passed by this Court.
At the cost of repetition we may state that regarding complaints the observation was also made by this Court in the judgment dated 08.05.2019 that despite giving reference to certain complaints no findings on the same adverse to the petitioner was recorded. Similarly, it is also to be noticed that the decision of the Selection Committee for carrying forward the vacancy to the year 2017 also stood set aside by the order dated 08.05.2019 passed by this Court, inasmuch as the said decision contained in the letter/order dated 12.04.2017 was challenged by the petitioner which was quashed by the Court. Thus, we have no hesitation to hold that the proposal dated 23.08.2018 submitted by the DoPT pursuant to the Office Memorandum issued by the Secretariat of the ACC, dated 14.06.2019 furnished certain material/information which were not relevant at all for consideration of the case of the petitioner for grant of extension of term of his appointment as Judicial Member of the CAT.
Having observed as above, it is now to be noted that the Rules 2011 as amended vide notification dated 21.03.2014 only require the Competent Authority to consider the recommendation of the Selection Committee together with the views of the Chief Justice of India for the reason that sub rule 4 of rule 9 clearly states that the recommendation of the Selection Committee along with the views of the Chief Justice of India shall be submitted to the Competent Authority for orders. While we say that it is only the recommendation of the Selection Committee and the views of the Hon'ble the Chief Justice of India which should be placed or submitted to the Competent Authority for orders, we do not mean that the Administrative Department (which in this case is the DoPT) is precluded from bringing to the notice of the Competent Authority any relevant material such as complaints or reports or any other material reflecting upon the functioning of the Judicial Member of the CAT in respect of whom extension of term of appointment is being considered. However, while we say that it is well within the competence of the DoPT to furnish all relevant information and material before the Competent Authority i.e. ACC, for orders, we also observe that the rules do not envisage any "recommendation" to be furnished by the Administrative Department (DoPT). Furnishing recommendation by the DoPT, in fact, appears to be alien to the rules. We need to differentiate between furnishing of recommendations and submission of relevant material. The relevant material is placed before any authority or body for its consideration without any comment by the authority or person furnishing the same, however, recommendation would necessarily involve some views about the merit of candidature of the candidate concerned. Thus, in this view, any such recommendation, which is not envisaged under the rules, has the potential of affecting the mind of the Competent Authority whereas material in the form of complaints etc. if furnished, are to be considered without any recommendation of the Administrative Department. The Rules thus do not rightly envisage any recommendation to be furnished to the Competent Authority by the Administrative Department.
In this case, as is apparent from a bare reading of the proposal dated 23.08.2014, the DoPT has made the proposal which is couched in negative language. The proposal, in fact, suggests that the order conveying the decision of ACC with regard to the denial of extension of the term of the petitioner be issued in compliance of the directions dated 09.05.2019 passed by this Court. The opinion of the ACC, in our considered view, is to be formed by application of independent mind by its members for the reason that rule 9(4) of the Rules mandates the Competent Authority to pass orders or to take decision on the basis of the recommendations of the Selection Committee and the views of the Chief Justice of India. The Administrative Department in such matters, keeping in view the position of the rules as discussed above, is thus required only to furnish the recommendation of the Selection Committee, views of the Chief Justice of India and also any inputs which the department may be in possession of, for its consideration by the Competent Authority sans any recommendation.
In view of what we have stated above, it is abundantly clear that the proposal/recommendation submitted by the DoPT vide Office Memorandum dated 23.08.2019 is not only against the rules but it also contains certain material regarding which this Court in its judgment and order dated 08.05.2019 had made observations and had found that there did not exist anything adverse to the candidature of the petitioner. We are, thus, convinced that the decision making process as also the impugned decision whereby the proposal submitted by the DoPT to the Competent Authority for denial of extension of the term of appointment of the petitioner as Judicial Member of CAT has been approved, are vitiated.
In respect of submission made by the learned Senior Advocate appearing for the petitioner that having regard to the facts and circumstances of the case as also the manner in which the impugned decision has been taken, this Court itself is competent to issue appropriate direction granting extension of term of appointment of the petitioner, it is observed that so far as the proposition propounded in the judgments cited by the learned counsel for the petitioner is concerned, there cannot be any quarrel. However, we do not find it a case where findings recorded by the Competent Authority empowered under the rules can be substituted by us. It is ultimately the satisfaction of the Competent Authority under the rules which has to be given precedence and finality. As a word of caution at this juncture itself, we may, however, observe that this does not mean that the Competent Authority under the rules can easily ignore the recommendations of the Selection Committee which comprises of a sitting Judge of Hon'ble Supreme Court of India, the apex court of the country and officers of very higher rank in the Government of India. Such recommendation along with the views of Chief Justice of India cannot be brushed aside without there being any justifiable reason. As observed by Hon'ble Supreme Court in the case of R. S. Mittal (supra) when a recommendation is made by the Selection Committee comprising of such high ranking officials and even constitutional functionary, there has to be a very strong and justifiable reason to decline such recommendation. Hon'ble Supreme Court in the case of Union of India and others vs. Kali Dass Batish (supra) has observed that if the legislature has reposed faith in the Chief Justice of India as the pater familias of the Judicial hierarchy in the country, it is not open to contend that the Chief Justice of India might have given his concurrence without application of mind or without calling for necessary inputs.
As noticed above, the recommendations, made by such statutory Selection Committee comprising of the persons, as elaborated above, by dint of the very nature of composition of the Committee, are to be placed at a higher pedestal. But the fact remains that all such recommendations and views are subject to the orders to be passed or decision to be taken by the Competent Authority in terms of Rule 9(4) of the Rules 2011 as amended in the year 2014. Therefore we do not find ourselves in agreement with this submission made by the learned counsel for the petitioner.
For the discussion made and the reasons given above, the writ petition is allowed.
The order dated 11.10.2019 as is available at page 53 of the writ petition and the communication dated 24.10.2019 as is available at page 52 of the writ petition are hereby quashed.
The Competent Authority under Rule 9(4) of Administrative Tribunals (Procedure for Appointment of Members), Rules 2011 as amended in the year 2014 vide notification dated 21.03.2014 will thus take decision afresh in the matter for grant of extension of term of appointment of the petitioner as Judicial Member of the CAT as early as possible, say within a period of ten weeks from the date a certified copy of this order is produced before the authority concerned.
In the facts of the case, there will be no order as to costs.
Order Date :- 27.8.2021 akhilesh/ [Ajai Kumar Srivastava-I J.] [D. K. Upadhyaya, J.]