2009 (2) TMI 332 - HC - Central Excise

Petition dismissed for lack of entitlement; Judicial review not applicable; Consultation with Chief Justice crucial.

JAMES K. JOSEPH Versus GOVERNMENT OF INDIA

The court dismissed the writ petition, ruling that the petitioner was not entitled to the relief sought. It held that the decision to withdraw the ... Central Administrative Tribunal (CAT) - In this Writ Petition, the petitioner seeks a writ in the nature of mandamus commanding the first respondent to appoint him as Administrative Member in the Central Administrative Tribunal, Ernakulam Bench. – Petitioner alleging that subsequent withdrawal of recommendation based on false intelligence report - The petitioner has in the Writ Petition placed reliance on the decision of the High Court of Himachal Pradesh in Kali Das Batish v. Union of India & others - Selection Committee withdrew their earlier recommendation to appoint him and that the recommendation of the Selection Committee to withdraw their earlier recommendation to appoint him as Administrative Member was concurred with by the Honourable the Chief Justice of India and approved by the appointing authority - This Court exercising the power of judicial review cannot therefore, as held by the Apex Court, sit in appeal over the decision of the Selection Committee or of the Honourable the Chief Justice of India who approved it, substitute its own decision and invalidate the decision of the Government of India. It is also now well settled by a series of decisions of the Apex Court including the decision in Union of India and others v. Kali Das Batish and another (supra) that the mere inclusion of a candidate in the select list does not confer on him a right to be appointed and that if there was no right, there could be no occasion to maintain a writ petition for the enforcement of a non-existing right. Therefore, the petitioner cannot, in my considered opinion, assail the decision taken by the Government of India not to appoint him as Administrative Member of the CAT – Petition is dismissed Issues Involved:1. Eligibility and qualifications for appointment as Administrative Member in the Central Administrative Tribunal (CAT).2. The validity of the Selection Committee's recommendation and subsequent withdrawal.3. The impact of the Intelligence Bureau's report on the petitioner's appointment.4. Judicial review of the decision not to appoint the petitioner.5. The role of the Chief Justice of India in the appointment process.6. The legal precedents and principles applicable to the case.Issue-wise Detailed Analysis:1. Eligibility and Qualifications for Appointment as Administrative Member in the CAT:The petitioner, a retired member of the Indian Audit and Accounts Service, claimed eligibility for the position of Administrative Member in the CAT, citing his extensive experience as an Accountant General and Joint Secretary in the Ministry of Personnel. He had applied for the position in response to a government notification inviting applications for three vacancies in the CAT.2. The Validity of the Selection Committee's Recommendation and Subsequent Withdrawal:Initially, the Selection Committee recommended the petitioner for the position. However, following an adverse report from the Intelligence Bureau, the Committee withdrew its recommendation. The petitioner challenged this withdrawal, arguing that the adverse report was based on false information and engineered by an individual with whom he had a personal conflict.3. The Impact of the Intelligence Bureau's Report on the Petitioner's Appointment:The Intelligence Bureau's report cited an unfavorable inquiry during the petitioner's tenure as Accountant General of Kerala, which allegedly led to his voluntary retirement. The petitioner disputed the report's accuracy, presenting evidence to suggest no such inquiry had occurred and attributing the adverse report to personal vendetta.4. Judicial Review of the Decision Not to Appoint the Petitioner:The court considered whether it could issue a writ of mandamus to compel the government to appoint the petitioner. The petitioner argued that the decision not to appoint him was arbitrary and based on non-existent facts. However, the court referenced the Supreme Court's decision in Union of India v. Kali Das Batish, which held that judicial review is limited when the decision involves the concurrence of the Chief Justice of India and is based on Intelligence Bureau reports.5. The Role of the Chief Justice of India in the Appointment Process:The Chief Justice of India concurred with the Selection Committee's decision to withdraw the petitioner's recommendation. The court emphasized that this concurrence is not a mere formality but a critical safeguard ensuring the suitability of candidates for judicial appointments.6. Legal Precedents and Principles Applicable to the Case:The court cited several Supreme Court decisions, including State of Madhya Pradesh v. Bhailal Bhai, S.R. Venkataraman v. Union of India, R.S. Mittal v. Union of India, and Dr. A.K. Doshi v. Union of India, to outline the principles governing judicial review of administrative decisions. It reiterated that the inclusion of a candidate in a select list does not confer an automatic right to appointment and that decisions based on Intelligence Bureau reports and the concurrence of the Chief Justice of India are generally beyond the scope of judicial review.Conclusion:The court dismissed the writ petition, holding that the petitioner was not entitled to the relief sought. It concluded that the decision to withdraw the petitioner's recommendation, concurred by the Chief Justice of India and based on the Intelligence Bureau's report, was not subject to judicial review. The court emphasized that the consultation with the Chief Justice of India serves as an inbuilt check against arbitrariness and bias, ensuring only suitable candidates are appointed to judicial positions.